United States v. Young , 180 F. App'x 508 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-41269
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE D. YOUNG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-77-RAS-DDB
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Steve D. Young appeals his 18-month, guilty-plea sentence
for making, uttering and possessing a forged security, in
violation of 18 U.S.C. § 513(a). Young argues that the
enhancement of his sentence for abuse of a position of trust
pursuant to U.S.S.G. § 3B1.3 contravenes the principles announced
by the Supreme Court in United States v. Booker, 543 U.S. 220
(2005). As the Government has not invoked the waiver provision
*
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this opinion should not be published and is not precedent except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. 04-41269
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in Young’s plea agreement, the waiver is not binding on Young.
See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
Where, as in this case, a Booker error has been preserved in
the district court, “we will ordinarily vacate the sentence and
remand, unless we 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 citations omitted).
Young admitted in his factual resume to facts sufficient to
prove that he abused a position of trust. See U.S.S.G. § 3B1.3,
comment. n.1 (2003); United States v. Brown, 941 F.2d 1300, 1305
(5th Cir. 1991). Because such admissions cannot form the basis
for a Booker claim, Young’s Booker claim fails. See United
States v. Burke, 431 F.3d 883, 889 (5th Cir. 2005).
Young also argues that his sentence should be vacated and
his case remanded for resentencing because his sentence was
imposed based on the mandatory application of the Sentencing
Guidelines. We review his preserved Fanfan challenge for
harmless error. See United States v. Walters, 418 F.3d 461,
463-64 (5th Cir. 2005). The Government bears the burden of
proving beyond a reasonable doubt that the district court would
have imposed the same sentence had the Guidelines been advisory
only. Id. at 464.
The sentencing transcript is silent with regard to whether
the district court would have imposed the same sentence had the
No. 04-41269
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Guidelines been advisory. The Government cannot meet its burden.
Accordingly, we vacate Young’s sentence and remand the case for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.