United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-50785
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EDWARD BELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-254-2
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges
PER CURIAM:*
Robert Edward Bell pleaded guilty to conspiracy to
manufacture methamphetamine and was sentenced to a 240-month term
of imprisonment and a three-year term of supervised release. The
district court’s judgment imposed alternative sentences of 16
months of imprisonment and 5 years of imprisonment depending on
whether the Sentencing Guidelines were held to be
unconstitutional in whole or in part. Bell now appeals,
challenging only his sentence.
*
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this opinion should not be published and is not precedent except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. 04-50785
-2-
Bell contends, in reliance on Blakely v. Washington, 124
S. Ct. 2531 (2004), that the Sentencing Guidelines are
unconstitutional, and he challenges the district court’s
determination of the drug quantity attributable to him for
sentencing purposes and the two-level enhancement of his offense
level pursuant to U.S.S.G. § 2D1.1(b)(5)(A). He also has filed a
supplemental letter brief challenging the validity of his 240-
month sentence and the district court’s mandatory application of
the Sentencing Guidelines in the light of the Supreme Court’s
recent decision in United States v. Booker, 125 S. Ct. 738
(2005).
In the light of Booker, the judicially determined sentence
enhancements, made under a mandatory guidelines regime, violated
Bell’s Sixth Amendment rights. 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 (U.S. Mar. 31,
2005) (No. 04-9517). We conclude that, were we to review Bell’s
240-month sentence for harmless error, 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 that Bell received. See United States v. Akpan,
__F.3d__, No. 03-20875, 2005 WL 852416 at *12 (5th Cir. Apr. 14,
No. 04-50785
-3-
2005). Accordingly, we vacate Bell’s sentence and remand for
resentencing.
Bell argues that this court should impose one of the two
alternative sentences set forth in the district court’s judgment
or order the district court to impose one of the alternative
sentences on remand. “Even in the discretionary sentencing
system established by Booker/Fanfan, a sentencing court must
still carefully consider the detailed statutory scheme created by
the [Sentencing Reform Act] and the Guidelines, which are
designed to guide the judge toward a fair sentence while avoiding
serious sentence disparity.” Mares, 402 F.3d 518-19. The
district court did not have the benefit of Booker when imposing
the alternative sentences. Accordingly, we vacate Bell’s
sentence in its entirety, including the alternative sentences set
forth in the judgment, and remand for resentencing.
VACATED AND REMANDED FOR RESENTENCING.