United States v. Conner , 157 F. App'x 701 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2005
Charles R. Fulbruge III
No. 04-41591 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEROY CONNER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 1:04-CR-32-1
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Leroy Conner, Jr. appeals the 33-month sentence of
imprisonment imposed following his guilty plea to counterfeit
securities charges. He asserts that his sentence violates United
States v. Booker.1
Because Conner’s sentence was enhanced based on facts
neither admitted by him nor proved to a jury beyond a reasonable
doubt, it was imposed in violation of the Sixth Amendment and
*
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opinion should not be published and is not precedent except under the limited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.
1
125 S.Ct. 738 (2005).
Booker.2 Where, as here, the defendant preserved the error in
district court, we will vacate the sentence and remand unless the
Government shows that the error was harmless beyond a reasonable
doubt.3 To do this, it must show beyond a reasonable doubt that
the court would have given the defendant the same sentence had it
thought the Guidelines were advisory.4
The Government has not met this burden. Although the
district court stated that it would have imposed a 36-month
sentence had the Guidelines been advisory, the court was able to
impose that longer sentence at the time as it was within the
Guidelines range of 33 to 41 months. As a result, we are unsure
whether its statement was a misstatement. Because we must vacate
Conner’s sentence due to Booker error, we do not address Conner’s
argument that the district court erred by denying him a reduction
for acceptance of responsibility.5
Conner’s sentence is VACATED and the case is REMANDED for
resentencing.
2
Id. at 756.
3
United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
4
Id.5
United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
2