United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 26, 2006
Charles R. Fulbruge III
Clerk
No. 04-61177
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNY JOHNSON, also known as Lil Benny,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:03-CR-98-2
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Benny Johnson appeals his jury convictions and sentences for
conspiracy to possess with intent to distribute cocaine base,
possession with intent to distribute in excess of 50 grams of
cocaine base, and possession of a firearm in relation to a drug-
trafficking offense. Johnson argues that the evidence was
insufficient to support his convictions for conspiracy to possess
with intent to distribute cocaine base, possession with intent to
distribute in excess of 50 grams of cocaine base, and possession
*
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this opinion should not be published and is not precedent except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. 04-61177
-2-
of a firearm in relation to a drug-trafficking offense. Because
Johnson moved for a judgment of acquittal at the close of the
Government’s case and did not present any evidence, he properly
preserved his sufficiency claim for appellate review. See United
State v. Resio-Trejo, 45 F.3d 907, 911 n.6 (5th Cir. 1995). “In
deciding the sufficiency of the evidence, we determine whether,
viewing the evidence and the inferences that may be drawn from it
in the light most favorable to the verdict, a rational jury could
have found the essential elements of the offenses beyond a
reasonable doubt.” United States v. Pruneda-Gonzalez, 953 F.2d
190, 193 (5th Cir. 1992).
A review of the evidence indicates that a rational jury
could have found the evidence sufficient to establish beyond a
reasonable doubt that Johnson possessed a firearm in relation to
or in furtherance of the drug-trafficking offenses. See United
States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000).
Johnson was arrested while climbing out of the rear window of the
house in which cocaine base was being sold. After his arrest,
police found an unusual bullet in his pocket. Inside the house,
police found a handgun, loaded with the same unusual bullets that
Johnson had in his pocket, on the floor just below the window out
of which Johnson was climbing. Police also found a brown paper
bag containing approximately 57.72 grams of cocaine base lying on
the ground near Johnson’s right foot. Codefendant Mario Blanch
testified that he had seen Johnson with the handgun on the night
No. 04-61177
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of the search. In view of this evidence, a rational jury could
have found that the evidence established beyond a reasonable
doubt that Johnson possessed the handgun in relation to or in
furtherance of the drug-trafficking offenses. See
Pruneda-Gonzalez, 953 F.2d at 193.
The evidence was also sufficient to support Johnson’s
convictions for conspiracy to possess with intent to distribute
cocaine base and possession with intent to distribute in excess
of 50 grams of cocaine base. In addition to the evidence already
noted, the arresting officer testified that he noticed that while
Johnson was handcuffed on the ground, he was cocking his right
leg back “as if to move the dope out of the way.” Blanch also
testified that Johnson had been selling cocaine base out of a
brown paper bag just before the police arrived. Police seized
firearms, ammunition, and electronic scales with white residue
inside the house. In view of this evidence, a rational jury
could have found that the evidence established that Johnson
participated in a conspiracy to possess with intent to distribute
cocaine base and that he possessed with intent to distribute in
excess of 50 grams of cocaine base. See Pruneda-Gonzalez, 953
F.2d at 193.
Johnson also argues that the district court erred in
sentencing him under the then mandatory United States Sentencing
Guidelines held unconstitutional in United States v. Booker, 124
S. Ct 738 (2005). The Government concedes that Johnson preserved
No. 04-61177
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this issue for appeal. Therefore, the Government bears the
burden of showing harmless error by “‘prov[ing] beyond a
reasonable doubt that the district court would not have sentenced
[the defendant] differently had it acted under an advisory
Guidelines regime.’” United States v. Garza, 429 F.3d 165, 170
(5th Cir. 2005)(quoting United States v. Pineiro, 410 F.3d 282,
284-87 (5th Cir. 2005)). The Government has not met its burden
as it has not cited record evidence indicating that the district
court would have imposed the same sentence under an advisory
Guidelines scheme. See id. Therefore, Johnson’s sentences are
VACATED, and the case is REMANDED for resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED
FOR RESENTENCING.