United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-50921
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ANTONIO MATA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-67-3
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Before GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Antonio Mata appeals the sentence he received
following his guilty-plea conviction for distributing heroin
within 1,000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1) and 860; for using a firearm in connection with a
drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1); for being an unlawful user of a controlled substance
in possession of a firearm, in violation of 21 U.S.C.
*
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this opinion should not be published and is not precedent except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. 04-50921
-2-
§ 922(g)(3); and for being a felon in possession of a firearm, in
violation of 21 U.S.C. § 922(g)(1). He first contends that the
district court erred in sentencing him as an armed career
criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.
Because Mata did not object to the armed-career-criminal
enhancement in the district court, review is for plain error.
See United States v. Vonn, 535 U.S. 55, 59 (2002). Mata has
demonstrated that the enhancement was plainly erroneous because
the record does not establish that his prior conviction for
simple possession of cocaine under Texas law was a “serious drug
offense” or that his prior conviction for theft under Texas law
was a “violent felony” within the meaning of the statute so as to
qualify as predicate offenses. See 18 U.S.C. §§ 924(e)(2)(A) and
(B). Even assuming that the two other prior convictions pleaded
in the indictment constitute valid predicate offenses, three
predicate offenses are required by the statute. See 18 U.S.C.
§ 924(e)(1). The error affected Mata’s substantial rights
because, without the enhancement, he would have been subjected to
a lower sentence.
Mata next renews the argument, preserved in the district
court, that his constitutional rights were violated when the
district court assessed a two-point adjustment, pursuant to
U.S.S.G. § 2K2.1(b)(4), based on judicially determined facts,
citing Blakely v. Washington, 124 S. Ct. 2531 (2004). In light
of the Supreme Court’s recent decision in United States v.
No. 04-50921
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Booker, 125 S. Ct. 738, 756 (2005), the two-level adjustment
violated Mata’s Sixth Amendment right to a trial by jury, and the
Government has not carried its burden of demonstrating that the
error was harmless. Accordingly, Mata’s sentence is VACATED, and
the case is REMANDED FOR RESENTENCING. See United States v.
Pineiro, __F.3d__, No. 03-30437, 2005 WL 1189713, *4 & n.4 (5th
Cir. May 20, 2005); United States v. Akpan, 407 F.3d 360, 377
(5th Cir. 2005); United States v. Mares, 402, 511, 520 n.9 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-
9517).
VACATED AND REMANDED FOR RESENTENCING.