United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40165
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND RAY BARNES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-432-ALL
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Before GARWOOD, JONES and SMITH, Circuit Judges.
PER CURIAM:*
Raymond Ray Barnes appeals his conviction and the sentence
he received after he pleaded guilty to possession of marijuana
with intent to distribute, in violation of 21 U.S.C. § 841. He
seeks to challenge the constitutionality of 21 U.S.C. § 841(a)
and (b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
As Barnes concedes, his argument is foreclosed by United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
*
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this opinion should not be published and is not precedent except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. 05-40165
-2-
Barnes also argues, for the first time on appeal, that the
district court erred by imposing a sentence pursuant to the
mandatory Sentencing Guidelines system held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). Because the
district court erred in sentencing Barnes pursuant to a mandatory
Guidelines scheme, he meets the first two requirements for relief
under plain error review. See United States v. Olano, 507 U.S.
725, 731-37 (1993); United States v. Valenzuela-Quevedo, 407 F.3d
728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005). The
Government concedes that Barnes can satisfy the third prong of
plain error by showing that the district court felt constrained
by the Sentencing Guidelines and most likely would have imposed a
lower sentence under an advisory Guidelines scheme. The
Government also agrees that the sentence should be vacated and
the case should be remanded to the district court for
resentencing. We find nothing in the record that disturbs the
Government’s representation.
Accordingly, Barnes’s conviction under 21 U.S.C. § 841 is
AFFIRMED; his sentence, however, is VACATED, and the case is
REMANDED for further proceedings.
AFFIRMED IN PART; VACATED IN PART; REMANDED.