United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41275
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
KAYE SHAW MARR,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:03-CR-11-RAS-DDB-1
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Kaye Shaw Marr appeals her sentence for conspiring to manufacture, distribute, or possess
with the intent to manufacture or distribute more than five but less than 50 grams of
methamphetamine, in violation of 21 U.S.C. § 846, and for possession of pseudoephedrine with the
intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c). She contends that the
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
district court erred under United States v. Booker, 543 U.S. 220 (2005), in attributing 49 grams of
methamphetamine to her for sentencing purposes. Marr additionally argues that the district court
erred in sentencing her under the mandatory sentencing guidelines regime held unconstitutional in
Booker.
The sentencing transcript is devoid of evidence that the district court would have imposed the
same sentence under an advisory regime, and, therefore, as the Government concedes, it cannot bear
its burden of establishing beyond a reasonable doubt that the district court’s error was harmless. See
United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005). Accordingly, Marr’s sentence is
VACATED, and the case is REMANDED for further proceedings. See id. at 466. Because we
vacate Marr’s sentence and remand for resentencing under an advisory guidelines scheme, we do not
reach the other claim of sentencing error that she raises. See United States v. Akpan, 407 F.3d 360,
377 n.62 (5th Cir. 2005).
VACATED AND REMANDED FOR RESENTENCING.
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