United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-20953
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LEE EVANS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-29-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Eric Lee Evans appeals the sentence imposed following his
guilty-plea conviction for possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Evans argues that, in light of United States v. Booker, 125
S. Ct. 738 (2005), the district court erred in sentencing him
under a mandatory guidelines system and in sentencing him based
upon facts that were not admitted by him or found by a jury.
*
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this opinion should not be published and is not precedent except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. 04-20953
-2-
The two-level adjustment to Evans’s sentence pursuant to
U.S.S.G. § 2K2.1(b)(4) violated his Sixth Amendment right to a
trial by jury, and the Government has not carried its burden of
demonstrating that the error was harmless. See United States v.
Pineiro, 410 F.3d 282, 286 (5th Cir. 2005); United States v.
Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005). Accordingly,
Evans’s sentence is VACATED, and the case is REMANDED FOR
RESENTENCING. Because it is necessary to vacate Evans’s sentence
based upon the Sixth Amendment Booker error, we do not address
Evans’s argument that his sentencing pursuant to a mandatory
guidelines scheme constitutes reversible error. See Akpan, 407
F.3d at 377 n.62.
VACATED AND REMANDED FOR RESENTENCING.