United States v. Whavers , 166 F. App'x 112 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 February 6, 2006
    Charles R. Fulbruge III
    Clerk
    No. 04-61162
    Summary Calendar
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    AARON WHAVERS, also known as Big Grass
    Defendant - Appellant
    --------------------
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 1:03-CR-90-1
    --------------------
    Before KING, DeMOSS and PRADO, Circuit Judges.
    PER CURIAM:*
    Aaron Whavers appeals the sentence imposed following his
    guilty plea to conspiracy to distribute in excess of five
    kilograms of a mixture or substance containing a detectable
    amount of cocaine hydrochloride, and in excess of 50 grams of a
    mixture or substance containing a detectable amount of cocaine
    base, in violation of 21 U.S.C. § 846.
    Whavers argues that the district court committed error under
    United States v. Booker, 
    125 S. Ct. 738
    (2005), when it sentenced
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 04-61162
    -2-
    him based on facts that were neither admitted by him or found by
    a jury.   The Government argues that Whavers’s appeal is barred by
    the waiver of appeal that is contained in his plea agreement and
    has filed a motion to dismiss the appeal.
    In Whavers’s plea agreement he expressly waived, inter alia,
    the right to appeal his conviction and sentence, or the manner in
    which the sentence was imposed, on the grounds set forth in 18
    U.S.C. § 3742, or on any ground whatsoever.     However, at his
    rearraignment, the district court advised Whavers that he had
    waived his right to appeal “as long as it’s a legal sentence.”
    The district court thus mischaracterized the appeal waiver by
    stating that Whavers would lose his right to appeal as long as
    the court imposed a “legal sentence,” because the district
    court’s statement implies that Whavers could appeal an “illegal
    sentence,” a right that was not included in the appeal waiver.
    The district court’s advice thus included an inaccurate
    characterization of the appeal waiver and therefore does not
    comply with FED. R. CRIM. P. 11(b)(1)(N)’s requirement that the
    court advise the defendant of “the terms of any plea-agreement
    provision waiving the right to appeal.”     Thus, the appeal waiver
    was not knowing and voluntary.   See United States v. Robinson,
    
    187 F.3d 516
    , 517-18 (5th Cir. 1999).     The appeal waiver
    therefore does not bar this appeal.   The Government’s motion to
    dismiss is DENIED.
    No. 04-61162
    -3-
    Whavers is correct that the district court committed Sixth
    Amendment error under 
    Booker, 125 S. Ct. at 756
    , when the
    district court calculated Whavers’s sentence based upon factual
    determinations of drug quantity and offense role that were
    neither admitted by Whavers nor determined by a jury.
    Additionally, as the Government concedes, Whavers’s objection
    apprised the district court that he was raising a Sixth Amendment
    challenge to the sentencing enhancements and therefore he
    preserved this issue.    See United States v. Akpan, 
    407 F.3d 360
    ,
    376 (5th Cir. 2005).    Where, as here, a Booker error has been
    preserved in the district court, this court “will ordinarily
    vacate the sentence and remand, unless [this court] can say the
    error is harmless under Rule 52(a) of the Federal Rules of
    Criminal Procedure.” United States v. Pineiro, 
    410 F.3d 282
    , 284
    (5th Cir. 2005) (internal quotation marks and citation omitted).
    The Government concedes that it cannot show harmlessness in
    Whavers’s case.   Thus, the Government has not met its “arduous”
    burden of demonstrating “beyond a reasonable doubt that the Sixth
    Amendment Booker error did not affect the sentence that [Whavers]
    received.”   
    Pineiro, 410 F.3d at 285
    , 287.
    Accordingly, Whavers’s sentence is vacated and the case is
    remanded for resentencing.
    VACATED AND REMANDED; MOTION TO DISMISS DENIED.
    

Document Info

Docket Number: 04-61162

Citation Numbers: 166 F. App'x 112

Judges: DeMOSS, King, Per Curiam, Prado

Filed Date: 2/6/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023