United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-40903
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMANUEL KARRIEM SHABAZZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-202-ALL-RC
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Emmanuel Karriem Shabazz pleaded guilty to
possession with intent to distribute methamphetamine, a violation
of 21 U.S.C. § 841(a)(1). He was sentenced to 135 months of
imprisonment and five years of supervised release. Shabazz now
appeals, challenging only his sentence.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Shabazz
argues that the district court erred when it enhanced his offense
level by two pursuant to U.S.S.G. § 2D1.1(b)(1) based on a
preponderance finding that Shabazz possessed a weapon in connection
*
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this opinion should not be published and is not precedent except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.
with the offense. In light of the Supreme Court’s recent decision
in United States v. Booker, 125 S. Ct. 738, 756 (2005), the
judicially determined enhancement, made under a mandatory guideline
regime, violated Shabazz’s Sixth Amendment right to a trial by
jury.
When, as here, a defendant has preserved a Booker issue 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. Mares, 402,
511, 520 n.9 (5th Cir. 2005). We conclude that, were we to review
Shabazz’s sentence for harmless error, we would hold that the
government has not met its burden of demonstrating beyond a
reasonable doubt that the mandatory nature of the guidelines did
not contribute to the sentence imposed. See United States v.
Akpan, __F.3d__, No. 03-20875, 2005 WL 852416 at *12 (5th Cir. Apr.
14, 2005). Accordingly, we vacate Shabazz’s sentence and remand
for resentencing. See id.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
2