United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-41759
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARY RUTH WEST,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-52-1
--------------------
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Mary Ruth West appeals the 21-month sentence imposed following
her guilty plea convictions for four counts of making and
subscribing false tax returns. West argues that the district court
erred in sentencing her in violation of United States v. Booker,
125 S. Ct. 738 (2005) because she did not admit the conduct used to
enhance her sentence. She argues that she preserved the error in
the district court and that the Government cannot show that the
error is harmless.
*
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opinion should not be published and is not precedent except under the limited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.
In Booker, the Supreme Court extended its Sixth Amendment
holding in Blakely v. Washington, 124 S. Ct. 2531 (2004) to the
federal sentencing guidelines. “Any 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, 125 S. Ct. at 756. The
Court in Booker excised 18 U.S.C. § 3553(b)(1) of the Sentencing
Reform Act, rendering the federal sentencing guidelines advisory.
Id. at 764-65.
When, as here, a Booker error is preserved, this court will
ordinarily vacate and remand for resentencing unless the Government
can establish harmless error beyond a reasonable doubt. United
States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005). The
Government acknowledges that the factual findings made by the
district court to enhance West’s sentence violated the Sixth
Amendment in light of Booker. It also concedes that it cannot
establish harmless error beyond a reasonable doubt.
The district court imposed a guideline sentence of 21 months
and alternative sentences of 13 months if the guidelines were found
to be unconstitutional or if it was determined that the district
court was not authorized to make factual findings supporting
sentencing enhancements. It cannot be determined from the record
which sentence the district court would have imposed if it had
known that the sentencing guidelines were discretionary rather than
2
mandatory in nature. Therefore, the sentence is VACATED, and the
case is REMANDED to the district court for resentencing in light of
Booker.
3