                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                        REVISED APRIL 17, 2006
                                                              March 15, 2006
              IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                     Clerk



                             No. 04-41757



UNITED STATES OF AMERICA

               Plaintiff - Appellee

     v.

JULIAN RODRIGUEZ-MESA

               Defendant - Appellant


          Appeal from the United States District Court
                for the Southern District of Texas


Before KING, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:

     Defendant-appellant Julian Rodriguez-Mesa pleaded guilty to

one count of transporting an alien and was sentenced to nineteen

months in prison and two years of supervised release.         The

question presented in this appeal is whether the district court,

in sentencing Rodriguez-Mesa, erred in applying the enhancement

for “intentionally or recklessly creating a substantial risk of

death or serious bodily injury to another person” for Rodriguez-

Mesa’s transportation of an illegal alien.       See U.S. SENTENCING

GUIDELINES MANUAL § 2L1.1(b)(5) (2003) [hereinafter U.S.S.G.].

                                 -1-
Although we conclude that the district court did not err in

applying the Guidelines, we must nevertheless VACATE and REMAND

for resentencing in light of United States v. Booker, 543 U.S.

220 (2005).

                I. FACTUAL AND PROCEDURAL BACKGROUND

     On July 7, 2004, Julian Rodriguez-Mesa drove a Plymouth

Voyager minivan to the Sarita, Texas border patrol checkpoint.1

After observing that Rodriguez-Mesa appeared to be nervous, the

border patrol agent at the primary inspection point directed him

to a secondary inspection for further investigation.   At the

secondary inspection, agents discovered a male occupant, later

identified as Rosendo Ponce-Mata, a citizen of Mexico, in a

compartment that had been built in the center console of the

minivan.   The compartment was located between the front seats of

the vehicle, and there was a door located on top of the

compartment.   The compartment covered half of Ponce-Mata’s body,

including his head and his torso, but his legs extended on to the

floorboard of the front passenger’s side of the vehicle.

     Rodriguez-Mesa and Ponce-Mata were advised of their Miranda

rights and both agreed to make statements to the border patrol

agents.    Rodriguez-Mesa admitted that he was transporting Ponce-

Mata in order to rid himself of a $400 debt that he owed to a man


     1
        Rodriguez-Mesa was accompanied by Annie Rojas, who rode
in the front passenger’s seat. Rojas was processed and released
at the checkpoint.

                                 -2-
by the name of Ricardo Garcia of Houston, Texas.   Rodriguez-Mesa

stated that he picked up the minivan from Garcia and that Ponce-

Mata was already inside the vehicle when he took possession of

the minivan.

     In his statement, Ponce-Mata told the agents that he had

crossed into the United States illegally, without documentation,

and that he had made arrangements to be smuggled from Mexico to

Houston for $2000.   Ponce-Mata claimed that when Rodriguez-Mesa

picked him up on July 7, 2004, Rodriguez-Mesa instructed him to

hide in the compartment located in the center console of the

minivan.2   In his sworn deposition on August 3, 2004, Ponce-Mata

gave a similar account to what he had earlier told the border

patrol agents, but he added that he was not endangered by being

transported in the minivan’s console area.   He testified that he

was not locked in the compartment, had enough air to breathe, and

was able to feel the vehicle’s air conditioning system.

     On July 28, 2004, Rodriguez-Mesa was charged in a one-count

indictment with transporting an illegal alien in violation of 8

U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii).   The indictment also

contained an additional section entitled “Aggravating Factor.”

This section alleged that Rodriguez-Mesa “intentionally or

recklessly created a substantial risk of death or serious bodily


     2
        Rodriguez-Mesa refuted this statement at his
rearraignment hearing, instead asserting that Ponce-Mata was
already inside of the compartment when he picked up the minivan.

                                -3-
injury to another person” in violation of U.S.S.G. § 2L1.1(b)(5).

Without a written plea agreement, Rodriguez-Mesa pleaded guilty

to the alien transporting charge, but he refused to plead guilty

to the aggravating factor alleged in the indictment.3

     3
        At his rearraignment hearing, the following exchange
occurred between Rodriguez-Mesa and the district court in
discussing his guilty plea:

     THE COURT:          [W]hat is your plea     to   Count 1,
                         guilty or not guilty?

     DEFENSE COUNSEL:    Guilty, he’ll say, except for the
                         aggravating factor.

     THE COURT:          I’m   not  asking   you  to plead,
                         [Defense Counsel]. Is this guilty
                         or not guilty, Mr. Mesa?

     RODRIGUEZ-MESA:     Guilty, except for the aggravating
                         factor, Your Honor.

     THE COURT:          Are you pleading guilty because you
                         are in fact guilty?

     RODRIGUEZ-MESA:     Of the smuggling, yes, ma’am.     Not
                         of the aggravating factor.

     THE COURT:          Pardon?

     RODRIGUEZ-MESA:     I’m pleading guilty to the smuggling
                         of the illegal alien, but I don’t
                         feel that I’m guilty about the
                         aggravating factor.

     THE COURT:          Why is that?

     RODRIGUEZ-MESA:     He could have gotten up   any time he
                         wanted to. He wasn’t in   danger. He
                         was--he could breathe.     He had--he
                         was actually sleeping.    He had like
                         a–-

     THE COURT:          Did he have a seat belt down there?


                               -4-
     In the Presentence Report (“PSR”), the probation officer

made the following sentencing recommendations:   The base offense

level was 12, U.S.S.G. § 2L1.1(a)(2); six points were added

because during the commission of the offense, Rodriguez-Mesa

“recklessly created a substantial risk of death or serious bodily

injury to another person by concealing an illegal alien in the

console area of the transport vehicle,” U.S.S.G. § 2L1.1(b)(5);

and three points were subtracted for acceptance of

responsibility, U.S.S.G. § 3E1.1(a).    Based on these adjustments,

the probation officer recommended a total offense level of 15.

With Rodriguez-Mesa’s criminal history category of I, the

recommendation resulted in a guideline imprisonment range of

eighteen to twenty-four months.

     Rodriguez-Mesa filed written objections to the PSR,

disputing the six-level enhancement under U.S.S.G. § 2L1.1(b)(5)

on two grounds.   First, he contended that, under Blakely v.

Washington, 542 U.S. 296 (2004), the enhancement violated his

Sixth Amendment right to a jury trial because the judge used

facts not admitted by him or proven to a jury beyond a reasonable

doubt.   Second, he argued that the enhancement for reckless

endangerment was not supported by the facts.   He alleged, as

support, that Ponce-Mata’s sworn deposition showed that Ponce-



     RODRIGUEZ-MESA:      No, ma’am.

2 R. at 21-22.

                                  -5-
Mata was not in any danger, had enough air to breathe, and could

have opened the lid to the compartment at any time.

     In an addendum to the PSR, the probation officer maintained

that the increase was applicable, stating that

     [i]n respect to the Blakely objection, objections which
     deal with the constitutionality of a case will be
     addressed by the Court at sentencing.        As per the
     reckless endangerment adjustment [pursuant to U.S.S.G.
     § 2L1.1(b)(5)], the defendant was transporting an illegal
     alien in a compartment built into the center console area
     of the transport vehicle. Had an accident occurred, the
     illegal alien would not be in a position to free himself.

     The district court overruled Rodriguez-Mesa’s objections to

the PSR at sentencing.    In rejecting Rodriguez-Mesa’s Blakely

objection, the district court stated that it had to “go with the

law of the Circuit”4 and concluded that Rodriguez-Mesa was not

entitled to a jury trial on the adjustment for reckless

endangerment but that it would “make a finding, if any, by beyond

a reasonable doubt.”   After considering Ponce-Mata’s sworn

deposition and photographs of the compartment and Ponce-Mata in

the compartment,5 the district court also rejected Rodriguez-

Mesa’s objection to the reckless endangerment enhancement under

U.S.S.G. § 2L1.1(b)(5).   Specifically, the district court found




     4
        See United States v. Pineiro, 377 F.3d 464, 465 (5th Cir.
2004) (holding that “Blakely does not extend to the federal
Guidelines”), vacated, 543 U.S. 1101 (2005).
     5
        Rodriguez-Mesa does not dispute the accuracy of the
photographs that the government submitted as evidence.

                                 -6-
that the console was not designed for passenger use,6 the console

looked like it was the same size as from the factory, and Ponce-

Mata’s “head and upper body were stuffed in the console, and his

feet were twisted around underneath the glove compartment.”7     The

district court concluded that the reckless endangerment

enhancement should apply, “find[ing] beyond a reasonable doubt

that Mr. Rodriguez-Mesa created a substantial risk of serious

bodily injury by transporting an illegal alien in that fashion.”

On December 15, 2004, the district court sentenced Rodriguez-Mesa

to nineteen months in prison and two years of supervised release.

     Rodriguez-Mesa now appeals, arguing that: (1) the district

court erred in applying a six-level enhancement under U.S.S.G.

§ 2L1.1(b)(5); and (2) this court should vacate and remand for

resentencing because he raised a Blakely objection at the

district court and the government has failed to prove that the

error was harmless beyond a reasonable doubt.

                     II. STANDARD OF REVIEW

     Although the Supreme Court in Booker excised and struck down

the statutory provisions that made the Sentencing Guidelines




     6
        See 3 R. at 11 (“Well, sticking his head through the
center console and wrapping his legs around the center console is
not a position, is not any way designed the way he was using this
for passenger use.”).
     7
        According to Ponce-Mata’s sworn deposition, he is five
feet, six inches, weighing 170-180 pounds.

                               -7-
mandatory,8 “a district court is still required to calculate the

guideline range and consider it advisory.”   United States v.

Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005) (citing

Booker, 543 U.S. at 245-46, and United States v. Mares, 402 F.3d

511, 518-19 (5th Cir. 2005), cert. denied, 126 S. Ct. 43 (2005)).

After Booker, we continue to review the district court’s

interpretation and application of the Guidelines de novo and its

factual determinations for clear error.   United States v. Solis-

Garcia, 420 F.3d 511, 513-14 (5th Cir. 2005); see also United

States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005)

(noting that this court continues to review factual findings with

respect to the application of adjustments under the Guidelines

for clear error), cert. denied, 126 S. Ct. 268 (2005); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005) (concluding

that this court continues after Booker to review the district

court’s interpretation and application of the Guidelines de

novo).9

     8
        Booker, 543 U.S. at 259 (severing and excising “the
provision that requires sentencing courts to impose a sentence
within the applicable Guidelines range (in the absence of
circumstances that justify a departure)”) (citing 18 U.S.C.
§ 3553(b)(1)).
     9
        There was some discussion at oral argument regarding
Solis-Garcia’s impact on our standard of review. In Solis-
Garcia, this court noted that the standard of review has not
changed since Booker. See Solis-Garcia, 420 F.3d at 513-14
(noting that this court continues to apply the same standard of
review to a sentence imposed under the Guidelines that we applied
prior to Booker, i.e., we review the district court’s
interpretation of the Guidelines de novo and the district court’s

                               -8-
                           III. DISCUSSION

     Section 2L1.1(b)(5) provides that a defendant’s base offense

level must be at least 18 “[i]f the offense involved

intentionally or recklessly creating a substantial risk of death

or serious bodily injury to another person . . . .”     U.S.S.G.

§ 2L1.1(b)(5).   The commentary to § 2L1.1(b)(5) explains that

     [r]eckless conduct to which the adjustment from
     subsection (b)(5) applies includes a wide variety of
     conduct (e.g., transporting persons in the trunk or
     engine compartment of a motor vehicle, carrying
     substantially more passengers than the rated capacity of
     a motor vehicle or vessel, or harboring persons in a
     crowded, dangerous, or inhumane condition).

U.S.S.G. § 2L1.1(b)(5) cmt. n.6.10     Besides the latter part of

the commentary, which mentions harboring persons in a dangerous

condition, nothing in the commentary directly speaks to

transporting an alien in a compartment located inside of a

vehicle.   See id.   Although the factual scenario in this case is

not expressly included in this list of reckless conduct, this



factual determinations for clear error). Because there was no
factual dispute regarding the facts necessary to support the
enhancement in Solis-Garcia, see id. at 514, the only question
before the court was the application question--i.e., “[w]hether
Solis’s conduct in transporting the illegal aliens qualifies as
‘intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person’ as required for a
§ 2L1.1(b)(5) sentence enhancement”--which was, under our
standard of review, considered de novo. Id.
     10
        “[C]ommentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).

                                 -9-
court has not limited § 2L1.1(b)(5) to the examples mentioned in

the commentary.   See United States v. Garcia-Guerrero, 313 F.3d

892, 896 (5th Cir. 2002) (stating that “[t]he commentary

expressly states that the adjustment applies to ‘a wide variety

of conduct’”).

     We have not found any published opinions that address the

particular circumstances created by Rodriguez-Mesa in

transporting an illegal alien in a compartment concealed between

the front passenger’s seats.   Most of our decisions addressing

the application of § 2L1.1(b)(5) involve transporting aliens

unrestrained in the bed of a pickup truck or in an overcrowded

vehicle without seats or seatbelts.   See, e.g., Angeles-Mendoza,

407 F.3d at 750-51 (concluding that the adjustment under

§ 2L1.1(b)(5) was appropriate where the “defendants smuggled

aliens in the back of their truck and modified the vehicle to

allow more smuggled aliens to fit in by removing the back

seats”); United States v. Cuyler, 298 F.3d 387, 391 (5th Cir.

2002) (holding that the defendant’s act of transporting four

aliens in the bed of a pickup truck recklessly created a

substantial risk of injury to the aliens); id. at 390-91 (citing

numerous circuit courts holding that § 2L1.1(b)(5) applies in

cases where the defendant smuggled aliens in an overcrowded van,

often without seats or seatbelts).

     These cases are not particularly relevant here.    Although

Ponce-Mata was not wearing a seatbelt, in view of the fact that

                               -10-
he was transported in a compartment located between the front

passenger’s seats, it seems less likely that Ponce-Mata would

have been thrown from the vehicle in the event of an accident.

Cf. Solis-Garcia, 420 F.3d at 516 (noting that transporting

illegal aliens without requiring them to wear seatbelts is not by

itself enough for the § 2L1.1(b)(5) enhancement).    In addition,

Ponce-Mata was positioned directly beside Rodriguez-Mesa and

could have communicated any discomfort he may have experienced or

in the case of an emergency.   These factors distinguish this case

from many of the cases cited above and from the examples cited in

the commentary.   See U.S.S.G. § 2L1.1(b)(5) cmt. n.6; see also

Cuyler, 298 F.3d at 390-91.

     The parties both point to Solis-Garcia--our most recent

published decision addressing the application of U.S.S.G.

§ 2L1.1(b)(5)--as relevant and helpful in deciding whether the

district court in the present case erred.   In Solis-Garcia, this

court held that “the act of transporting four aliens lying in the

cargo area of a minivan, with no aggravating factors, [does not]

constitute[] an inherently dangerous practice such as to create a

substantial risk of death or serious bodily injury to those

aliens.”   420 F.3d at 516 (emphasis added).   In support of its

holding, the court contrasted the facts in Solis-Garcia with

those in Cuyler, 298 F.3d at 388-89.   The court noted that unlike

an individual riding in the bed of a pickup truck who is not

protected by the passenger compartment of the vehicle, see

                               -11-
Cuyler, 298 F.3d at 391, “[a]n individual riding in the cargo

area of a minivan has access to oxygen, is not exposed to extreme

heat or cold, and can easily extricate himself from his position

on the floor of the van.”   Solis-Garcia, 420 F.3d at 516.      The

court also rejected the idea that § 2L1.1(b)(5) punishes

offenders simply for transporting illegal aliens without

requiring them to wear seatbelts.     Id. (“The § 2L1.1(b)(5)

enhancement as written, one would think, does not extend so far

as to increase punishment for offenders simply for transporting

illegal aliens without requiring them to wear seatbelts.”).

Recognizing that the contours of § 2L1.1(b)(5) are dependent upon

carefully applying the guideline in a case-by-case analysis, the

court concluded that the defendant did not create a substantial

risk of death or serious bodily injury.     Id.

     Rodriguez-Mesa argues that the holding and reasoning of

Solis-Garcia apply with equal force to his case and militate

against the district court’s application of the reckless

endangerment enhancement.   He contends that there is no

meaningful distinction between his case and Solis-Garcia because

Ponce-Mata had access to oxygen, was not exposed to extreme heat

or cold, and could easily extricate himself from his position on

the floor of the minivan.   See id.   In contrast, the government

claims that Solis-Garcia stands for the proposition that the

reckless endangerment enhancement does not apply to transporting

illegal aliens who are not wearing seatbelts without proof of

                               -12-
additional aggravating factors.   According to the government,

this case involves aggravating factors that were not present in

Solis-Garcia, thereby distinguishing it from the instant case.

     We agree with the government that this case is

distinguishable from our recent opinion in Solis-Garcia.     Here,

unlike Solis-Garcia, Ponce-Mata could not have easily extricated

himself from a position where “his head and upper body were

stuffed in the console, and his feet were twisted around

underneath the glove compartment.”   Cf. id. (stating that an

individual riding in the cargo area of a minivan “can easily

extricate himself from his position on the floor of the van”).

That Ponce-Mata was required to maintain this contorted position

on the floor of the minivan (for at least an hour before the

checkpoint and potentially for another 250 miles from the

checkpoint to Houston), with the upper half of his body stuffed

into the console and his arms pinned to his sides, suggests

exposure to a “substantial risk of . . . serious bodily injury.”

See Cuyler, 298 F.3d at 390 (stating that the illegal aliens who

were unrestrained in the bed of the pickup truck “almost

certainly would have been injured in the event of an accident”).

Contrary to Rodriguez-Mesa’s assertions, the photographs indicate

that it would have been difficult to extricate Ponce-Mata,

regardless of whether the lid of the console opened easily,

because of Ponce-Mata’s crammed position in the compartment.     Cf.

United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (“[A]

                              -13-
person hiding inside a locked trunk could not extricate himself,

while a person hiding in a hatchback area easily could extricate

himself by pushing up the lightweight, flimsy hatchback cover.”).

     The presence of this additional aggravating factor--the

inability of Ponce-Mata to extricate himself--distinguishes this

case from Solis-Garcia and supports the district court’s

application of the reckless endangerment enhancement in this

case.     Cf. Solis-Garcia, 420 F.3d at 516 (“In this case, it is

not asserted . . . that the aliens were subjected to any other

risks.”).     Accordingly, based on our own “case-specific

analysis,” we conclude that the district court did not err in

applying § 2L1.1(b)(5) to this set of facts.     See id. (“Defining

the contours of this enhancement is dependent upon carefully

applying the words of the guideline in a case-specific

analysis.”).

     Although we hold that the district court did not err in

applying the reckless endangerment enhancement of U.S.S.G.

§ 2L1.1(b)(5), we must determine the effect that Booker has on

Rodriguez-Mesa’s sentence.11    Rodriguez-Mesa argues that his

sentence “runs afoul of Booker in two separate, though related,

ways.”     First, he asserts that he received a sentence greater

     11
        Here, unlike the court in Villegas, we must reach the
Booker issue because we conclude that the district court did not
err in applying the Guidelines. Cf. Villegas, 404 F.3d at 364-65
& n.8 (addressing “antecedent error that the district court
committed by misapplying the Guidelines” and pretermitting review
of alleged Booker error).

                                 -14-
than that authorized by the facts admitted by him, in violation

of Booker’s Sixth Amendment holding.    Second, he alleges “Fanfan

error” because the district court sentenced him under the

mandatory application of the Guidelines.     Rodriguez-Mesa

correctly recognizes that there are two types of error addressed

in Booker.   See United States v. Walters, 418 F.3d 461, 463 (5th

Cir. 2005) (“Booker error is found where the district court

applied the mandatory Guidelines and enhanced a defendant’s

sentence on the basis of facts neither admitted by him nor found

by a jury beyond a reasonable doubt, in violation of the Sixth

Amendment[,]” whereas “‘Fanfan error’ is found where the district

court applied the mandatory Guidelines to enhance a defendant’s

sentence absent any Sixth Amendment Booker error.”); see also

Villegas, 404 F.3d at 364 (same).     Regardless of whether

Rodriguez-Mesa’s error is characterized as a Booker or Fanfan

error, he preserved that error by raising a Blakely objection in

the district court.   Compare United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005) (stating that a Blakely objection in the

district court preserves Booker error and reviewing under the

harmless-error standard), cert. denied, 126 S. Ct. 1444 (2006),

with United States v. Gonzalez-Ribera, 2006 WL 319270, at *1 (5th

Cir. Feb. 13, 2006) (unpublished) (stating that a Blakely

objection in the district court preserves Fanfan error and

reviewing for harmless error) (citing Walters, 418 F.3d at 463);

see also United States v. Rodriguez, 433 F.3d 411, 415-16 (4th

                               -15-
Cir. 2006) (concluding that the defendant properly preserved his

claim of Fanfan error (“statutory Booker error”) by raising a

timely Blakely objection at sentencing, and noting that the

court’s position that a Blakely objection preserves Fanfan error

for harmless-error review “is consistent with the unanimous view

of the nine courts of appeals to have considered the question[,]”

including the Fifth Circuit).

     When there is preserved Booker or Fanfan error, as here,

“the only question is whether the government has met its burden

to show harmless error beyond a reasonable doubt in the

imposition of [the defendant’s] sentence.”12   Walters, 418 F.3d

at 464.   Although at least one panel of this court has questioned

whether the harmless beyond a reasonable doubt standard applies

to a preserved Fanfan error,13 we are bound to follow Walters,

     12
        Although Rodriguez-Mesa argues that Booker error is
structural and therefore insusceptible to harmless-error
analysis, we have rejected this argument on numerous occasions.
See United States v. Arnold, 416 F.3d 349, 362 n.23 (5th Cir.
2005) (rejecting the argument that Booker error is structural and
insusceptible to harmless-error analysis, and stating that
“[n]either Booker error nor Fanfan error is structural”), cert.
denied, 126 S. Ct. 504 (2005) (citing United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005), cert. denied, 126 S. Ct.
194 (2005), and United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005), cert. denied, 126 S. Ct. 464 (2005)).
     13
        See United States v. Mendoza-Blanco, 440 F.3d 264, 265
n.7 (5th Cir. 2006) (stating that although the panel must follow
the panel’s decision in Walters, “we note that the standard of
review it applied--requiring the Government to show that
preserved Fanfan error was harmless beyond a reasonable doubt--
was not contested in the case and appears to be incorrect because
Fanfan error is nonconstitutional error” but deciding that “the
issue is irrelevant here because the Government cannot meet

                                -16-
which applied the harmless beyond a reasonable doubt standard to

a preserved Fanfan challenge.   See United States v. Ruiz, 180

F.3d 675, 676 (5th Cir. 1999) (noting that “this panel may not

overrule or ignore a prior panel decision”).    Based on the record

before us, we cannot say that the error was harmless beyond a

reasonable doubt because the district court did not indicate what

it would have done absent the mandatory Guidelines.   Therefore,

the government has not met its burden of proving that the Booker

or Fanfan error was harmless beyond a reasonable doubt.

     Accordingly, although we hold that the district court’s

application of U.S.S.G. § 2L1.1(b)(5) was warranted here, we must

nevertheless vacate and remand for resentencing in accordance

with Booker.   See United States v. Palomares-Alcantar, 406 F.3d

966, 968 (8th Cir. 2005) (holding that the district court’s

application of § 2L1.1(b)(5) was warranted, but remanding the

case for resentencing under an advisory Guidelines regime).

                          IV. CONCLUSION

     For the foregoing reasons, we AFFIRM Rodriguez-Mesa’s

conviction, VACATE Rodriguez-Mesa’s sentence, and REMAND for

resentencing in accordance with this opinion.




either burden”). Similarly, the government cannot meet either
burden in the present case. See id.

                                -17-
