United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2006
Charles R. Fulbruge III
Clerk
No. 04-20901
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GLENN CHUNN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-153-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
William Glenn Chunn appeals the sentence following his
guilty plea conviction to possessing 50 grams or more of
methamphetamine with intent to distribute, to possessing a
firearm during and in relation to a drug-trafficking offense, and
to being a felon in possession of a firearm. Chunn asserts that
because the district court calculated the relevant drug quantity
by adding a quantity of pseudoephedrine that Chunn did not admit
to possessing, the sentence violated the Sixth Amendment pursuant
*
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this opinion should not be published and is not precedent except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. 04-20901
-2-
to United States v. Booker, 125 S. Ct. 738 (2005). Because Chunn
raised this objection in the district court, this court will
ordinarily remand for resentencing, unless the Government can
show that the court’s sentencing error was harmless beyond a
reasonable doubt. United States v. Pineiro, 410 F.3d 282, 284
(5th Cir. 2005).
The Government asserts that because Chunn was sentenced in
the middle of the applicable guideline range, the sentence was
harmless. This court has rejected such an assertion. See United
States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005). Because
the Government cannot show that the district court would have
imposed the same sentence in the absence of the pseudoephedrine
quantity used, the judgment of the district court is VACATED and
the case is REMANDED to the district court for resentencing for
the drug conviction.