United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 8, 2006
---------------------- Charles R. Fulbruge III
Clerk
No. 04-41179
Summary Calendar
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CLINTON DALE EADS
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-27-ALL-RAS
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Clinton Dale Eads appeals his 50-month sentence for bank
robbery in violation of 18 U.S.C. § 2113(a). He contends that the
district court violated his Sixth Amendment right to a jury trial
when it enhanced his sentence based on the district judge’s finding
that a threat of death was made because this finding was neither
admitted by him nor made by a jury beyond a reasonable doubt.
The district court erred when it enhanced Eads’s sentence
pursuant to U.S.S.G. § 2B3.1(b)(2)(F) because the court’s factual
finding that Eads told the bank teller he had a gun was neither
*
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this opinion should not be published and is not precedent except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.
admitted by Eads nor found by a jury beyond a reasonable doubt.
See United States v. Booker, 543 U.S. 220, 244 (2005). Because
Eads preserved his Sixth Amendment argument in the district court
by raising an objection based on Blakely v. Washington, 542 U.S.
296 (2004), we review for harmless error. See United States v.
Garza, 429 F.3d 165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct.
1444 (2006). The Government bears the burden of demonstrating that
the Booker error did not affect Eads’s sentence. See United States
v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
The mere fact that the district court sentenced Eads in the
middle of the applicable guidelines range, standing alone, fails to
satisfy the Government’s burden of proving harmless error beyond a
reasonable doubt. See Garza, 429 F.3d at 170-171. Further, the
sentencing transcript is silent with regard to whether the district
court would have imposed the same sentence absent the Booker error.
Therefore, the Government has failed to carry its burden of showing
beyond a reasonable doubt that the error did not affect Eads’s
sentence. See Pineiro, 410 F.3d at 287. We therefore vacate
Eads’s sentence and remand the case for resentencing.
SENTENCE VACATED; CASE REMANDED.