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. 04-41111
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC BANKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:02-CR-3-TJW-ALL
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eric Banks pleaded guilty to possession of an unregistered
firearm, in violation of 18 U.S.C. §§ 5841, 5861(d), and 5871,
and was sentenced to 75 months in prison and three years of
supervised release. Banks now appeals, challenging only his
sentence.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Banks
contends that the district court erred when it imposed a four-
level Sentencing Guidelines increase under U.S.S.G. § 2K2.1(b)(5)
*
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this opinion should not be published and is not precedent except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. 04-41111
-2-
for having used and possessed a destructive device in connection
with another offense. In light of the Supreme Court’s recent
decision in United States v. Booker, 125 S. Ct. 738, 756 (2005),
this increase violated Banks’s Sixth Amendment right to a trial
by jury.
Where, as here, a defendant has preserved a Booker challenge
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). In this case, the
Government has not met its burden of demonstrating beyond a
reasonable doubt that the Sixth Amendment violation at issue did
not contribute to the sentence that Banks received. See United
States v. Akpan, F.3d , No. 03-20875, 2005 WL 852416 at
*12 (5th Cir. Apr. 14, 2005). Accordingly, we vacate Banks’s
sentence and remand for resentencing. See id.
VACATED AND REMANDED RESENTENCING.