United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 11, 2005
Charles R. Fulbruge III
Clerk
No. 04-11083
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY YANCEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:04-CR-40-ALL-A)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Jimmy Yancey appeals the sentence imposed following his guilty
plea to making a false statement to a federally insured bank.
Yancey was sentenced to a term of imprisonment of 21 months to be
followed by a five-year term of supervised release.
Yancey asserts: the district court erred in enhancing his
guideline sentencing range based on facts he did not admit; the
district court violated his Sixth Amendment rights in the light of
the holdings in Blakely v. Washington, 124 S. Ct. 2531 (2004) and
*
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this opinion should not be published and is not precedent except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.
United States v. Booker, 125 S. Ct. 738 (2005); and the Government
has failed to show harmless error.
The Government concedes the district court committed error in
increasing the penalty based on judge-found facts under a mandatory
guideline system. The Government, however, maintains the error was
harmless in the light of the district court’s decision not to
impose a sentence at the bottom of the sentencing guideline range.
Yancey preserved this sentencing issue by raising a Blakely
challenge before the district court. When a Booker error is
preserved in district court, this court “will ordinarily vacate the
sentence and remand” unless the error is harmless. United States
v. Pineiro, ___ F.3d ___, No. 03-30437, 2005 WL 1189713, at *2 (5th
Cir. 20 May 2005) (internal quotation marks and citation omitted).
The Government bears the burden of demonstrating the error was
harmless beyond a reasonable doubt. Id. To carry this burden, the
Government must show the Booker error did not affect the
defendant’s sentence, i.e., “that the district court would have
imposed the same sentence absent the error”. Id.
The district court erred by applying the enhancements for the
amount of loss and use of a sophisticated scheme because the facts
supporting these enhancements were neither admitted by Yancey nor
found by a jury beyond a reasonable doubt. See Booker, 125 S. Ct.
at 756. The Government’s contention that the error is harmless
because the district court imposed a sentence at the middle, rather
2
than at the bottom, of the guideline range does not address the
issue whether the district court would have imposed a lesser
sentence if a lower guideline sentencing range had been determined,
based solely on Yancey’s admissions. Because the Government has
not shown the district court would have imposed the same sentence
absent the Booker error, the sentence is VACATED and the case is
REMANDED for resentencing. See Pineiro, 2005 WL 1189713, at *2.
VACATED AND REMANDED
3