United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-10772
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN SHED,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-316-1-A
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin Shed appeals his guilty-plea convictions and sentence
for conspiracy to possess with intent to distribute more than five
kilograms of cocaine and more than 50 grams of cocaine base and
conspiracy to commit laundering of monetary proceeds. Shed first
argues that the district court abused its discretion by denying his
motion to withdraw his guilty plea. “[A] district court may, in
its discretion, permit withdrawal before sentencing if the
defendant can show a ‘fair and just reason.’” United States v.
*
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this opinion should not be published and is not precedent except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. 04-10772
-2-
Powell, 354 F.3d 362, 370 (5th Cir. 2003). A review of the seven
relevant factors reveals that the district court did not abuse its
discretion by denying Shed’s motion to withdraw his guilty plea.
See United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Shed
argues that the district court erred by calculating his offense
level and criminal history on the basis of facts not admitted by
him or found beyond a reasonable doubt. After briefing was
completed, the Supreme Court held in United States v. Booker, 125
S. Ct. 738, 756 (2005), 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 also struck down 18 U.S.C.
§ 3553(b)(1) and thus rendered the Guidelines advisory only. Id.
at 764-65.
The district court enhanced Shed’s sentence based on several
factual findings not admitted by Shed, and Shed objected to these
enhancements on Blakely grounds. Shed’s sentence of life
imprisonment thus exceeded the maximum sentence that could have
been imposed based solely on his plea and constituted a Sixth
Amendment violation under Booker. See Booker, 125 S. Ct. at 769.
When, as here, the defendant has preserved his error, we will
ordinarily vacate the sentence and remand, unless we can say that
the error is harmless under FED. R. CRIM. P. 52(a). See United
No. 04-10772
-3-
States v. Akpan, __ F.3d __, No. 03-20875, 2005 WL 852416 at *11
(5th Cir. Apr. 14, 2005). Under this standard, the Government
bears the burden of demonstrating beyond a reasonable doubt that
the constitutional error did not contribute to the defendant's
sentence. Id. at *12. Were we to review Shed’s sentence for
harmless error, we would find that the error here was harmful; we
cannot say beyond a reasonable doubt that the mandatory nature of
the Sentencing Guidelines at the time of Shed’s sentence did not
contribute to the sentence that he received. See id. Accordingly,
Shed’s sentence must be vacated and remanded for resentencing.
VACATED AND REMANDED.