United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 4, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-60490
Summary Calendar
United States of America
Plaintiff-Appellee,
versus
Mack Arthur Bowens
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mack Arthur Bowens was convicted of
various drug distribution and possession charges, as well as
obstruction of justice. We affirmed.1 After the Supreme Court
decided United States v. Booker,2 it vacated Bowens’s sentence and
remanded to this Court for further consideration in light of that
*
Pursuant to 5 TH 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should not be published and is not precedent except under the limited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
United States v. Bowens, 108 Fed. Appx. 945 (5th Cir. 2004) (per curiam).
2
125 S.Ct. 738 (2005).
decision. We requested and received supplemental letter briefs
addressing the impact of Booker.
As Bowens preserved his Booker issue at the district court, we
review for harmless error.3 Under harmless error review, the
burden is on the government to point to evidence that would prove,
beyond a reasonable doubt, that the district court would not have
sentenced the defendant differently.4 We have noted that this is
an “arduous burden” and that this Court “will ordinarily vacate and
remand” when Booker error has been preserved.5 Here, the
government cannot meet that burden. The government cannot point to
anything in the record suggesting that the judge would have imposed
the same sentence upon Bowen absent the mandatory guidelines.6
Accordingly, we REMAND to the district court to allow the
district court to resentence Bowens if, in its discretion under the
now-advisory Guidelines, it chooses to do so.
3
United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).
4
United States v. Akpan, 407 F.3d 360, 367 (5th Cir. 2005).
5
United States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir. 2005) (quoting
Mares, 402 F.3d at 520 n.9).
6
Cf. United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir. 2005)
(finding preserved Booker error harmless when the sentencing judge stated that
should the Supreme Court hold the federal guidelines unconstitutional, the court
would impose the same sentence); United States v. Nelson, 145 Fed. Appx. 82, 83
(5th Cir. 2005) (finding preserved Booker error harmless when the sentencing
judge expressed disappointment that there was not a greater statutory maximum and
indicated that a sentence above the maximum would have been appropriate).
2