United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 29, 2005
IN THE UNITED STATES COURT OF APPEALS June 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41352
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALAN SHELBY
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-240-ALL
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Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Alan Shelby, a federal inmate, appeals his sentence
following his guilty plea to the offense of being an inmate in
possession of a prohibited object, to wit: heroin, in violation
of 18 U.S.C. § 1791(a)(2). Shelby argues that his sentence must
be vacated in light of United States v. Booker, 125 S. Ct. 738
(2005).
Booker, 125 S. Ct. at 756, held that "[a]ny fact (other than
a prior conviction) which is necessary to support a 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this opinion should not be published and is not precedent except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. 04-41352
-2-
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 based Shelby’s sentence on its findings
that Shelby’s possession of heroin was for the purpose of
distribution within the prison, and it calculated his offense
level accordingly. The district court also applied a sentencing
enhancement for obstruction of justice because Shelby escaped
from custody while awaiting sentencing in this case. Shelby did
not admit these facts in the district court and objected to the
enhancements on Sixth Amendment grounds. Shelby’s 57-month
sentence 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 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 Shelby’s
sentence for harmless error, we would find that the error here
No. 04-41352
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was harmful. Although the Government asserts that the error was
harmless, we cannot say beyond a reasonable doubt that the
mandatory nature of the Sentencing Guidelines at the time of
Shelby’s sentence did not contribute to the sentence that he
received. See id. at *12. Accordingly, Shelby’s sentence must
be vacated and remanded for resentencing.
VACATED AND REMANDED.