United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-20749
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIKIA FRANKLIN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-190-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Nikia Franklin appeals her sentence following her guilty-
plea conviction for being a felon in possession of a firearm.
Franklin argues that the district court committed reversible
error when it sentenced her based on facts not admitted by her.1
Although the Government argues that there was no Sixth Amendment
violation, it concedes that the district court erred by
*
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this opinion should not be published and is not precedent except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.
1
Franklin also complains in passing that the district court
relied on facts not charged in the indictment. To the extent
that she raises a Fifth Amendment challenge, that argument is
waived as inadequately briefed. See FED. R. APP. P. 28(a).
No. 04-20749
-2-
sentencing Franklin under the mandatory guidelines scheme held
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005). The Government also concedes that Franklin preserved
this issue through her objection in the district court based on
Blakely v. Washington, 542 U.S. 296 (2004), and that it cannot
show that this error was harmless beyond a reasonable doubt. See
United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Accordingly, we VACATE Franklin’s sentence and REMAND to the
district court for resentencing in accordance with Booker. See
United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005).