United States v. Mitchell , 169 F. App'x 182 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-30791
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR T. MITCHELL
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CR-4-D-M1
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arthur T. Mitchell appeals the sentence imposed following
his guilty-plea conviction for possession of a firearm by a
felon, arguing that it violates the Sixth Amendment rule
announced in Blakely v. Washington, 542 U.S. 296 (2004). After
briefing, the Supreme Court decided United States v. Booker, 125
S. Ct. 738 (2005), extending to the Sentencing Guidelines the
Court’s Sixth Amendment holding in Blakely and rendering the
Guidelines advisory only. Mitchell’s Blakely objection in the
district court preserved the issue for appeal, and we review for
*
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this opinion should not be published and is not precedent except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. 04-30791
-2-
harmless error, which requires a showing beyond a reasonable
doubt that the district court would have imposed the same
sentence if it had been operating under an advisory guidelines
system. See United States v. Pineiro, 410 F.3d 282, 284 (5th
Cir. 2005).
Our review of the record convinces us that the error in this
case cannot be considered harmless. Although the district court
sentenced Mitchell to the maximum sentence authorized by the
then-mandatory guidelines range, that fact is insufficient,
standing alone, to satisfy the Government’s burden. See United
States v. Woods, F.3d , No. 04-11058, 2006 WL 163475 (5th
Cir. Jan. 24, 2005). The district court’s comments about the
defendant’s criminal history and the impact of his offense shed
no additional light on what the court would have done if the
Guidelines had been advisory; they may simply reflect why the
court believed the sentence was appropriate within the mandatory
guidelines framework.
SENTENCE VACATED; REMANDED FOR RESENTENCING.