United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-41009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEHRAN ANDRE BATEY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-67-2
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Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL,
District Judge.*
PER CURIAM:**
Tehran Batey appeals the sentence he received following his
guilty plea for possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a). He renews his argument,
preserved in the district court, that his constitutional rights
were violated when the district court assessed a two-level
*
District Judge for the Southern District of Texas,
sitting by designation.
**
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that this opinion should not be published and is not precedent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. 04-41009
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enhancement for possession of a firearm, pursuant to §
2D1.1(b)(1) (2003), citing Blakely v. Washington, 159 L.Ed. 2d
403 (2004).
The government concedes that it cannot meet its burden under
a harmless error analysis that the mandatory nature of the
guidelines did not contribute to the sentence imposed. United
States v. Akpan, ___ F.3d ___, No. 03-20875, 2005 WL 852416 at
*12 (5th Cir. April 14, 2005). Accordingly, Batey’s sentence
must be vacated and remanded for resentencing consistent with
Booker, 125 S.Ct. 738 (2005).
VACATED and REMANDED.
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