United States v. Beltran-Hernandez

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 03-1953 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska.

Francisco Beltran-Hernandez, * also known as El Gordo, * [UNPUBLISHED] * Appellant. * ___________ Submitted: May 23, 2005 Filed: August 8, 2005 ___________ Before BYE, HEANEY, and SMITH, Circuit Judges. ___________ PER CURIAM.

Pursuant to the order of the United States Supreme Court in Beltran-Hernandez v. U.S., 125 S. Ct. 1053 (2005), vacating our judgment and remanding this case, we review for error under United States v. Booker, 125 S. Ct. 738 (2005). Because Beltran-Hernandez failed to raise a Booker-type issue below, we apply the plain error standard under United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005), and finding none, we reaffirm our prior opinion with regard to Beltran-Hernandez.

HEANEY, Circuit Judge, concurring.

I continue to believe that a defendant's challenge to the factual basis for a sentence enhancement preserves his Sixth Amendment sentencing claim. See United States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover, I adhere to the view stated by Judge Bye in Pirani that defendants who did not properly preserve their Booker claims in the district court are nonetheless generally entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67 (Bye, J., dissenting). Because a majority of our court held to the contrary on both counts, however, I concur.

BYE, Circuit Judge, concurring.

For the reasons articulated in my dissent in United States v. Pirani, 406 F.3d 543, 562-67 (8th Cir. 2005) (en banc) (Bye, J., dissenting), I join Judge Heaney in “adher[ing] to the view that defendants who did not properly preserve their Booker claims in the district court are nonetheless entitled to resentencing under a constitutional regime.” Like Judge Heaney, however, I recognize we are bound by the holding of our en banc court, and I therefore concur. ______________________________