United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-40726
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELEE CAMPOS CAMARGO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:99-CR-470-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Elee Campos Camargo appeals from his jury-trial conviction for
one count of conspiracy to possess with intent to distribute 89.4
kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and
846. Camargo claims the court erred, pursuant to United States v.
Booker, 543 U.S. 220 (2005). This claim is not moot because he is
serving a term of supervised release. See United States v.
Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001) (“[S]upervised release,
*
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that this opinion should not be published and is not precedent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.
while a form of post-imprisonment supervision, is still considered
to be a component of the defendant’s total sentence”.).
Camargo claims his constitutional rights were violated when
the district court assessed a two-level firearm increase, pursuant
to Sentencing Guideline § 2D1.1(b)(1), based on judicially-
determined facts. His Presentence Investigation Report and
sentencing objections sufficiently apprised the court he was making
a Sixth Amendment objection to being sentenced based on facts not
found by a jury. United States v. Akpan, 407 F.3d 360, 376 (5th
Cir. 2005); see United States v. Olis, 429 F.3d 540, 544 (5th Cir.
2005). The increase violated Camargo’s Sixth Amendment right to a
trial by jury, and the Government has not met its burden of
demonstrating the error was harmless beyond a reasonable doubt.
See United States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).
CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING
2