United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-10886
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY WAYNE SYAS,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:03-277-ALL-A
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Anthony Wayne Syas was convicted of one charge of possession
of stolen mail and sentenced to serve 24 months in prison and a
three-year term of supervised release. Syas now appeals his
sentence, which he contends must be vacated in light of United
States v. Booker, 543 U.S. 220 (2005). When, as here, a Booker
claim is preserved, we will ordinarily vacate and remand unless
the Government can show beyond a reasonable doubt that the error
was harmless. See United States v. Pineiro, 410 F.3d 282, 285
*
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this opinion should not be published and is not precedent except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. 04-10886
-2-
(5th Cir. 2005). The district court erred by basing Syas’s
sentence on facts concerning the amount of loss incurred in
connection with Syas’s offense that were neither found by a jury
nor admitted by him. See id. at 285-86. Further, this error is
not harmless. See id.; see also United States v. Garza, 429 F.3d
165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).
Consequently, Syas’s sentence is VACATED, and the case is
REMANDED FOR RESENTENCING.
This remedy does indeed present an unusual situation: the
district court must impose a new sentence, which includes a term
of imprisonment, but Syas has completed that part of his
sentence; thus, even if the district court decides to impose a
lesser sentence, which it is authorized to do, it will have no
effect on prison time to be served. Thus, the only practical
relief available on remand is that provided in 18 U.S.C. §
3583(e), a decision committed to the discretion and good judgment
of the district court.1
SENTENCE VACATED; REMANDED FOR RESENTENCING.
1
Because resentencing is warranted, there is no need to address Syas’s
remaining sentencing claim. See United States v. Akpan, 407 F.3d 360, 377 n.2
(5th Cir. 2005).