United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-50648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY BEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-36-1-SS
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court initially affirmed the sentence of Gregory Ben.
United States v. Ben, No. 04-50648, 2004 WL 2933555 (5th Cir.
Dec. 17, 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005). Ben v. United States, 125 S.Ct. 1959 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
*
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this opinion should not be published and is not precedent except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. 04-50648
-2-
Ben argues that he is entitled to resentencing because the
district court applied facts that were neither admitted by him
nor found by a jury beyond a reasonable doubt to arrive at his
sentence of 120 months of imprisonment. The problem in this case
is that Ben first asserted this argument, relying on Blakely v.
Washington, 542 U.S. 296 (2004), in a Federal Rules of Criminal
Procedure Rule 35(a) motion filed after entry of judgment and
sentencing. This court has not decided whether a
Blakely/Booker/Fanfan objection asserted in a Rule 35(a) motion
constitutes a timely preservation of the claim under Rule 52(a).
The government does not dispute in its supplemental letter brief
that Ben’s objection has been preserved, and therefore, for the
purposes of this case, we will assume without actually deciding
that Ben preserved the Booker error. Accordingly, our review for
harmless error under Rule 52(a), and the burden is on the
government to show harmless error beyond a reasonable doubt. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005);
United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005)
(holding that preserved Booker error is reviewed for harmless
error).
The district court, in denying Ben’s Rule 35 motion for
reconsideration of sentencing, noted that even if Blakely applied
to Ben’s sentence, his sentence would remain the same: the
statutory maximum for a violation of the felon-in-possession-of-a
firearm statute. The court noted that Ben’s criminal history was
No. 04-50648
-3-
under-represented and that he had almost twice as many points as
required for a criminal history category VI. Thus, the court
reasoned that an upward departure under U.S.S.G. § 4A1.3 was
warranted to bring Ben’s sentence up to 120 months, the
“appropriate sentence” for his offense. Under these facts, the
government has met its burden of showing harmless error beyond a
reasonable doubt. Accordingly, the judgment of the district
court is AFFIRMED.