United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 21, 2005
Charles R. Fulbruge III
Clerk
No. 03-10593
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNY WASHINGTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-00287-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
After we affirmed the judgment of conviction and sentence of
Kenny Washington, the Supreme Court decided United States v.
Booker1 and vacated and remanded for further consideration in
light of that case. 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this opinion should not be published and is not precedent except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.
1
125 S.Ct. 738 (2005).
No. 03-10593
-2-
Washington argues that he preserved a Booker challenge by
objecting to the sentencing enhancements and that, therefore, it
is the Government’s burden to show that the error was harmless.
Alternatively, he argues that if the error was not preserved and
the plain-error standard of review applies, he prevails under
that standard.
Washington’s objections were to sufficient to preserve his
Booker claim.2 Therefore, we review for harmless error.3 The
Government has the “burden of showing beyond a reasonable doubt
that the error did not affect the outcome of the district court
proceedings.”4
The Government has pointed to no evidence to show that the
district court would have imposed the same sentence absent the
sentencing error.5 Although the district court stated that it
had “struggled” in deciding whether to sentence Washington at the
high or low end of the Guidelines range, in fact the court
sentenced him at the low end. Because the Government failed to
meet its burden, Washington’s sentence is VACATED and the matter
REMANDED for sentencing. In our prior decision, we held that the
district court did not abuse its discretion in limiting the
2
See United States v. Akpan, 407 F.3d 360, 375-76 (5th Cir.
2005).
3
United States v. Pineiro, 410 F.3d 282, 286 (5th Cir.
2005).
4
Id.
5
See id.
No. 03-10593
-3-
cross-examination of Ralphcel Eaton or in allowing Tom Young to
testify. Because Booker does not change this result, that
portion of our prior decision is reinstated.