United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 8, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-51217
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARTIN LEE BARRON, also known as
Martin Barron; CHRYSTAL MICHELLE KEVIL,
Defendants - Appellants.
__________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-39-3
_________________________________________________________________
Before JOLLY, DENNIS and OWEN, Circuit Judges.
PER CURIAM:*
Martin Lee Barron and Chrystal Michelle Kevil appeal the
sentences imposed pursuant to their conviction on drug possession
charges. Specifically, they argue that the district court violated
their Sixth Amendment rights as outlined in United States v.
Booker, 125 S.Ct. 738 (2005), by enhancing their sentences based on
a drug quantity related to a conspiracy charge on which the jury
acquitted them.
Ultimately, this case turns on whether Barron and Kevil
preserved their Booker argument in the district court. If the
*
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this opinion should not be published and is not precedent except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.
error was not preserved, we will review the appellants’ sentences
for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). If the error was preserved, we will review the
sentences for harmless error. See United States v. Pineiro, 410
F.3d 282, 286 (5th Cir. 2005).
We determine that an error is preserved if “the objection was
specific enough to allow the trial court to take testimony, receive
argument, or otherwise explore the issue raised.” United States v.
Burton, 126 F.3d 666, 673 (5th Cir. 1997). The responses of both
the Government and the district court persuade us that the
appellants’ objections apprised the district court of their Booker
argument. We therefore hold that the error was preserved, and we
review the sentences for harmless error. The Government conceded
at oral argument that it could not meet its burden to show “beyond
a reasonable doubt that the error did not affect the outcome of the
district court proceedings, i.e., that the district court would
have imposed the same sentence absent the error.” Pineiro, 410
F.3d at 286. There is nothing in this record that persuades us to
the contrary. Accordingly, we hold that the error was not
harmless. Therefore, the appellants’ sentences are VACATED and the
case is REMANDED to the district court for resentencing.
VACATED and REMANDED.
2