United States v. Horne

United States Court of Appeals Fifth Circuit F I L E D In the June 20, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-40215 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS TOMMY JAMES LEE HORNE, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Eastern District of Texas m 1:03-CR-81-ALL ______________________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before DAVIS, SMITH, and DENNIS, Circuit Judges. Horne raised these issues on appeal, but we PER CURIAM:* held them foreclosed by Apprendi and United States v. Stone, 306 F.3d 241 (5th Cir. 2002). This court affirmed Tommy Horne’s con- The government candidly acknowledges that viction and sentence. United States v. Horne, “in view of Horne’s Apprendi-based objection 117 Fed. Appx. 327 (5th Cir. 2004) (per cur- to the [presentence report’s] calculation of im- iam). The Supreme Court vacated and re- prisonment using his three prior convictions manded for further consideration in light of and Armed Career Criminal status, it now ap- United States v. Booker, 125 S. Ct. 738 pears that [Horne’s argument] should be re- (2005). Horne v. United States, 125 S. Ct. viewed under the harmless error standard in 1749 (2005). We requested and received light of . . . Booker” (citing United States v. supplemental letter briefs addressing the im- Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005), pact of Booker.1 petition for cert. filed (Mar. 31, 2005) (No. 04-9517), and United States v. Rodriguez, 398 The government confesses error and the F.3d 1291, 1296-97 (11th Cir. 2005)). need to remand for resentencing based on the fact that the district court made a finding that The government thus posits that the district Horne was an armed career criminal under court’s “findings went beyond those admitted U.S.S.G. § 4B1.4. Horne filed objections to by the defendant and were objected to at sen- the presentence report, alleging (1) that there tencing.” In Mares, we directed that “if . . . was insufficient proof regarding the prior con- the Sixth Amendment issue presented in Book- victions; (2) the failure to submit the qualifying er . . . is preserved in the district court by an armed career criminal convictions to the jury objection, we will ordinarily vacate the sen- as a violation of Apprendi v. New Jersey, 530 tence and remand, unless we can say the error U.S. 466 (2000); and (3) the lack of sufficient is harmless under Rule 52(a) of the Federal notice of the prior convictions. The district Rules of Criminal Procedure.” Mares, 402 court denied the objections and made the F.3d at 520 n.9. The government recognizes finding that Horne is an armed career criminal. that the record does not support, beyond a reasonable doubt, that the district court would not have imposed a lesser sentence under an * Pursuant to 5TH CIR. R. 47.5, the court has de- advisory sentencing regime. Under Mares, termined that this opinion should not be published therefore, Horne is entitled to resentencing. and is not precedent except under the limited cir- cumstances set forth in 5TH CIR. R. 47.5.4. In his pro se supplemental letter brief, 1 Horne, in addition to addressing the Booker Horne was represented by counsel until the issues we have discussed, requests that on re- opinion was issued, whereupon counsel obtained mand the district court take account of the in- leave of this court to withdraw as counsel. Horne filed his certiorari petition pro se and continues to tervening decision in Shepard v. United States, represent himself at this time. 125 S. Ct. 1254 (2005). Indeed, Shepard 2 addresses the Armed Career Criminal Act, and the district court should consider it. We express no view on whether Shepard affords Horne any relief; that is for the district court to decide. The judgment of conviction is AFFIRMED for the reasons stated in our initial opinion. For the reasons set forth in this opinion, the judgment of sentence is VACATED and REMANDED for resentencing. We express no view as to whether the sentence Horne re- ceived, or for that matter any other particular sentence, is “reasonable” as that concept is discussed in Booker, 125 S. Ct. at 765-68, and its progeny. 3