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. 04-41508
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY W. GORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-232-2
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jerry W. Gore appeals his sentence following his guilty-plea
to conspiracy to possess with intent to distribute 500 grams or
more of methamphetamine. The district court calculated Gore’s
base offense level based on relevant conduct involving more
potent methamphetamine “ice” rather ordinary methamphetamine and
on Gore’s role as a leader of the conspiracy. The court
overruled Gore’s objection that two prior convictions counted in
his criminal history were more than 10 years old when Gore joined
*
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this opinion should not be published and is not precedent except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. 04-41508
-2-
the conspiracy. Gore argues that the district court’s factual
findings violated the Sixth Amendment and United States v.
Booker, 125 S. Ct. 738 (2005), because Gore did not admit the
facts used to increase his sentence.
Booker, 125 S. Ct. at 756, held that “[a]ny fact (other than
a prior conviction) which is necessary to support a sentence
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 rendered the federal sentencing guidelines advisory only.
Id. at 756-57, 764-65.
Gore expressly objected in the district court based on the
Sixth Amendment and Blakely v. Washington, 124 S. Ct. 2531
(2004), arguing that he should be sentenced based only on the
facts to which he had pleaded or admitted. Gore thus adequately
preserved his claim of a Sixth Amendment violation. See United
States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
Gore’s 327-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. Because Gore preserved the error, we will vacate the
sentence and remand, unless we can say that the error is harmless
under Fed. R. Crim. P. 52(a). United States v. Mares, 402 F.3d
511, 520 n.9 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517). Under this standard, the Government bears
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the burden of demonstrating beyond a reasonable doubt that the
constitutional error did not contribute to the defendant’s
sentence. Akpan, 407 F.3d at 377. The Government concedes that
it cannot bear its burden and points to no record evidence that
would prove beyond a reasonable doubt that the district court
would not have sentenced Gore differently had it acted under
advisory guidelines. Accordingly, Gore’s sentence must be
vacated and remanded for resentencing.
Because we vacate Gore’s entire sentence, we do not address
reach of his specific claims of sentencing errors but leave to
the district court’s discretion the sentence it will impose and
factors upon which it will rely. See Akpan, 407 F.3d at 377
n.62.
Gore does not challenge his conviction; it is affirmed. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (issues not
briefed are waived on appeal).
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.