United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 20, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-10615
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WALTER BRYAN ASHLOCK
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(02-CR-243)
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and BARKSDALE, Circuit Judge.*
PER CURIAM:**
Defendant Walter Bryan Ashlock argues that his conviction
and sentence should be vacated in light of United States v.
Booker, 125 S. Ct. 738 (2005), and the case remanded to the
*
Judge Pickering was a member of the original panel but
resigned from the Court on December 8, 2004 and therefore did not
participate in this decision. This matter is being decided by a
quorum. 28 U.S.C. § 46(d).
**
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that this opinion should not be published and is not precedent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.
district court. According to Ashlock, the district court erred
when it enhanced his sentence under a mandatory sentencing regime
based on findings made by it, rather than by the jury. Ashlock
additionally argues that the indictment that served as the basis
for his conviction was defective because it did not provide
notice of the alleged facts the district court found to enhance
his sentence. Accordingly, Ashlock contends that, at a minimum,
this court should vacate his sentence and remand to the district
court for resentencing.
The government agrees that this case should be remanded to
the district court for the purpose of resentencing.
Accordingly, IT IS ORDERED that the defendant’s conviction is
REINSTATED. IT IS FURTHER ORDERED that the defendant’s sentence
is VACATED and this case is REMANDED to the United States
District Court for the Northern District of Texas for
resentencing.1
1
Ashlock only challenges the sufficiency of the
indictment insofar as it pertains to the facts used to enhance
his sentence. Because we vacate Ashlock’s sentence, his argument
that the indictment was defective fails. Additionally, we note,
contrary to Ashlock’s argument, that after Booker, the government
is not required to allege in the indictment facts that are not
elements of the offense, but that might nonetheless serve as the
basis of a sentencing enhancement. See Booker, 125 S. Ct. at
761-62, 764.
2