United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-30834
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL B. CHESSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20046-1-PM
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael B. Chesson appeals his guilty-plea sentence for
possession and pledge of a stolen firearm, in violation of 18
U.S.C. §§ 922(j) and 924(a)(2).
Chesson renews his argument, preserved in the district
court, that in light of the Supreme Court’s decision in Blakely
v. Washington, 542 U.S. 296 (2004), the imposition of a two-level
enhancement for being a prohibited person pursuant to U.S.S.G.
*
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this opinion should not be published and is not precedent except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. 04-30834
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§ 2K2.1(a)(6)(A) was illegal because it was based on judicially
found facts and facts to which he did not admit.
The Government responds that any error in treating the
sentencing guidelines as mandatory rather than advisory was
harmless because Chesson was sentenced to the maximum guideline
range, thereby indicating that it is highly unlikely that he
would have received a lesser sentence had the district court
treated the guidelines as advisory.
Where, as here, an error under United States v. Booker, 125
S. Ct. 738 (2005), has been preserved in the district court, we
“will ordinarily vacate the sentence and remand, unless [this
court] can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.” United States v. Pineiro,
410 F.3d 282, 284 (5th Cir. 2005) (internal quotation marks and
citation omitted. “The government bears the burden of showing
that the error was harmless beyond a reasonable doubt.” Pineiro,
410 F.3d at 284. To meet this burden, the Government must show
that the Booker error did not affect the sentence that the
defendant received, i.e., it must show “that the district court
would have imposed the same sentence absent the error.” Id.
Without the prohibited-person enhancement, Chesson’s base
offense level would have been 12, and his total offense level
would have been 10 after a two-point downward adjustment for
acceptance of responsibility. His resulting guideline
imprisonment range would have been 10 to 16 months as opposed to
No. 04-30834
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18 to 24 months. As such, the district court’s sentencing error
contributed to his sentence, and he was prejudiced by the error
because the available sentencing range was increased beyond that
for which he would otherwise have been eligible.
Contrary to the Government’s assertion, a sentence at the
high end of the guideline range alone does not conclusively prove
that the district court would have imposed the same sentence
absent a Booker error. Cf. United States v. Rodriguez-Gutierrez,
F.3d , No. 04-30451, 2005 WL 2447908 at ** 2-3 (5th Cir.
Oct. 5, 2005) (holding, under a plain error standard of review,
that a sentence at the maximum end of the guidelines range is
strong but not conclusive evidence that the district court would
not have imposed a lesser sentence under an advisory guidelines
regime). If a maximum guideline sentence must be received
“together with relevant statements by the sentencing judge” to
show plain error, see id. at *3, it follows that the surrounding
context must be examined to determine if any error is harmless
beyond a reasonable doubt. Under the foregoing construct, the
error was not harmless beyond a reasonable because other than the
district court’s imposition of a sentence at the high end of the
guideline range, the record does not indicate that the district
court would have imposed the same sentence absent a Booker error.
The Government thus cannot meet its burden.
Accordingly, Chesson’s sentence is VACATED and the case is
REMANDED for resentencing.
No. 04-30834
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VACATED AND REMANDED.