United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2005
Charles R. Fulbruge III
Clerk
No. 03-60190
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DARIC M. JOHNSON also known as, Skeeter
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Mississippi
(02-CR-9)
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated the judgment in this case and
remanded it to this Court to reconsider in light of United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). In supplemental
briefing requested by this Court, Johnson contends, and the
government agrees, that resentencing is required because Johnson
was sentenced in violation of the Sixth Amendment. We agree and
*
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this opinion should not be published and is not precedent except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. 03-60190
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therefore vacate Johnson’s sentence and remand to the district
court for resentencing.
In October of 2002, a jury convicted Johnson of five counts
of a six-count indictment. Count 1 charged Johnson with
conspiracy to distribute in excess of 50 grams of cocaine base,
in excess of 100 kilograms of marijuana, and in excess of 5
kilograms of cocaine hydrochloride in violation of 21 U.S.C. §
846. Counts 2 through 4 charged Johnson with three violations of
21 U.S.C. § 841(a)(1): possession with intent to distribute less
than 50 kilograms of marijuana, possession with intent to
distribute in excess of 5 but less than 50 grams of cocaine base,
and possession with intent to distribute less than 500 grams of
cocaine hydrochloride. Count 5 charged Johnson with being a
convicted felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) and § 924(a)(2).
The district court sentenced Johnson under the United States
Sentencing Guidelines. Johnson’s base offense level of 38 relied
on the district court’s finding that Johnson was responsible for
possessing in excess of 1.5 kilograms of cocaine base. See
U.S.S.G. § 2D1.1(c). The district court also enhanced Johnson’s
offense level a total of six points for possessing a firearm
during the commission of the offense and for taking a leadership
role in the offense. See U.S.S.G. § 2D1.1(b)(1); U.S.S.G. §
3B1.1(a). This resulted in a total offense level of 44, but
because the Sentencing Guidelines only provide for a maximum
No. 03-60190
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level of 43, Johnson’s sentence was calculated based on an
offense level of 43. Combined with a criminal history category
of VI, the Sentencing Guidelines yielded a sentence of life
imprisonment, which the district court imposed.
During sentencing, Johnson objected to the district court
basing the sentence on a drug quantity in excess of that found by
the jury. He further objected to the enhancements for leadership
and possession of a firearm because the jury never found Johnson
played a leadership role in the offense or possessed a firearm
during the offense. Johnson maintained these objections on
appeal before this Court and again in his application for writ of
certiorari before the Supreme Court.
While his application for writ of certiorari was pending,
the Supreme Court issued its opinion in Booker. There, the Court
held that, under the Sixth Amendment, a defendant may not be
sentenced based on facts neither found by the jury nor admitted
by the defendant under a mandatory sentencing scheme. See Booker
125 S. Ct. at 756.
In light of this holding, it is clear that Johnson’s Sixth
Amendment rights were violated. Johnson has adequately preserved
his challenge to his sentence by raising objections at sentencing
and on appeal. It is impossible on this record to say that the
district court’s error was harmless where the sentencing judge
gave no indication that he was imposing the sentence independent
of the Sentencing Guidelines. See United States v. Mares, 402
No. 03-60190
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F.3d 511, 520 n.9 (5th Cir. 2005) (where a defendant has
preserved a Booker challenge in the district court, “we will
ordinarily vacate the sentence and remand, unless we can say the
error is harmless.”) Consequently, Johnson is entitled to
resentencing in accordance with the principles of Booker.
We VACATE Johnson’s sentence and REMAND to the district
court for resentencing.