United States v. Gonzalez-Huerta

BRISCOE, J., joined by SEYMOUR, J., and HENRY, J.,

concurring in part and dissenting in part, and joined by EBEL, J., as to Section IV, and LUCERO, J., as to Section V.

I agree with the majority that with the issuance of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we must now conclude the district court erred by applying the Sentencing Guidelines in a mandatory rather than advisory fashion at the time it sentenced Gonzalez-Huerta. Although I agree that this error was neither constitutional nor structural in nature, I disagree that the error does not warrant…