United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-40989
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JOHN RATER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-7-RAS-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Robert John Rater appeals the sentence imposed following his
guilty-plea conviction for being a felon in possession of a
firearm. He contends that the district court erred in imposing a
four-level upward adjustment to his offense level based on the
court’s finding that the offense involved the possession of 8-24
firearms. He also asserts that the district court erred in
determining that three of his prior offenses were not related
*
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this opinion should not be published and is not precedent except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. 04-40989
-2-
under U.S.S.G. § 4A1.2(a)(2). Rater raised both of these
arguments before the district court.
In United States v. Booker, 125 S. Ct. 738, 756 (2005), the
Supreme Court applied its previous holdings in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124
S. Ct. 2531 (2004), to the federal sentencing guidelines and
ruled that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker excised from the Sentencing Reform Act
the mandatory duty of district courts to apply the federal
sentencing guidelines and effectively rendered the guidelines
advisory only. Id. at 764; see United States v. Mares, 402 F.3d
511, 518 (5th Cir.), petition for cert. filed, No. 04-9517 (U.S.
Mar. 31, 2005). In Mares, we explained that Booker error occurs
when “a sentence, which was enhanced by using judge found facts,
not admitted by the defendant or found by the jury, in a
mandatory Guidelines system” is imposed. Mares, 403 F.3d at 521.
Such is the case here. Rater’s sentence was enhanced based
on the district court’s finding that his conduct involved 8-24
firearms, a fact to which there is no evidence in the record on
appeal that he admitted and which was not submitted to a jury.
Additionally, because Rater was sentenced prior to the decision
in Booker, the district court applied the sentencing guidelines
No. 04-40989
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as mandatory, rather than advisory. Given the increase in the
guidelines range applied by the district court, Rater was harmed
by the district court’s error. See United States v. Akpan, __
F.3d __, No. 03-20875, 2005 WL 852416 at *11-*12 (5th Cir. Apr.
14, 2005). Rater objected to the enhancement on facts neither
admitted nor found by a jury, and he has preserved the error.
Accordingly, Rater’s sentence is vacated and remanded to the
district court for resentencing in accordance with Booker.
In view of the order of vacatur, we pretermit consideration
of the other sentencing issue raised by Rater.
SENTENCE VACATED AND REMANDED.