United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 04-40987
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY A. SIMPSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-189-RAS-ALL
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Before GARWOOD, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Terry A. Simpson appeals his sentence following his guilty-
plea conviction to receipt of child pornography. He renews his
claim that the district court erred by adjusting his offense
level by four levels under U.S.S.G. § 2G2.2(b)(3) because the
factual finding supporting the adjustment was made by the
district court and was not made by a jury or admitted by him,
thus violating the Fifth and Sixth Amendments under Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,
125 S. Ct. 738 (2005). The Government concedes that Simpson’s
*
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this opinion should not be published and is not precedent except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. 04-40987
-2-
sentence is erroneous after Booker, that it cannot prove beyond a
reasonable doubt that the district court would have imposed the
same sentence if it knew that the guidelines were only
discretionary, and that the case should be remanded for
resentencing. Simpson’s sentence is thus vacated and the case is
remanded for resentencing. United States v. Akpan, ___ F.3d ___,
No. 03-20875, 2005 WL 852416 at *11-12 (5th Cir. Apr. 14, 2005).
VACATED AND REMANDED FOR RESENTENCING.