United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-41205
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EDWARD PHILLIPS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-18-LED-DDB
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Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
Charles Edward Phillips pleaded guilty to possession of an
unregistered firearm, a shotgun having a barrel length of less then
18 inches, a violation of 26 U.S.C. § 5861(d). Phillips was
sentenced to 41 months of imprisonment and three years of
supervised release. Phillips now appeals, challenging only his
sentence.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738, 756 (2005), Phillips
*
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this opinion should not be published and is not precedent except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. 04-41205
-2-
argues that the district court erred when it enhanced his offense
level by four pursuant to U.S.S.G. § 2K2.1(b)(5) because the
firearm was possessed in connection with another felony offense,
the possession of methamphetamine. Under Booker, the judicially
determined enhancement, made under a mandatory guideline regime,
violated his Sixth Amendment right to a trial by jury. Booker, 125
S. Ct. at 756.
Where, 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 F.3d 511, 520 n.9 (5th Cir. 2005), petition for cert. filed,
No. 04-9517 (U.S. Mar. 31, 2005). The Government concedes that it
cannot demonstrate that the Booker error is harmless because it
cannot show beyond a reasonable doubt that the mandatory nature of
the guidelines did not contribute to the Phillips’s sentence.
See United States v. Akpan, __F.3d__, No. 03-20875, 2005 WL 852416
at *12 (5th Cir. Apr. 14, 2005). Accordingly, we vacate Phillips’s
sentence and remand for resentencing. See id.
VACATE SENTENCE; REMAND FOR RESENTENCING.