United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 04-41289
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN TRAVIS JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-175-TH-ESH-2
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Shawn Travis Jones appeals his sentence following his guilty
plea conviction for carjacking. He argues that, in light of
United States v. Booker, 543 U.S. 220 (2005), his sentence must
be vacated because it was based on judicial fact-findings made in
violation of the Sixth Amendment. Specifically, Jones challenges
the enhancements to his sentence for brandishing a firearm and
abducting his victims. He also challenges the district court’s
denial of a reduction to his sentence for being a minor
*
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this opinion should not be published and is not precedent except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. 04-41289
-2-
participant. As the Government has not invoked the waiver
provision in the plea agreement, the waiver is not binding on
Jones. See United States v. Story, 439 F.3d 226, 230-31 (5th
Cir. 2006).
The finding by the district court that Jones could have
“reasonably foreseen” that his co-defendant would brandish a
firearm during the carjacking was necessary to support the
enhancement to Jones’s sentence. See United States v. Burton,
126 F.3d 666, 679 & n.23 (5th Cir. 1997). Since Jones never
admitted the fact that it was “reasonably foreseeable” to him
that his co-defendant would brandish a firearm during the
carjacking, the enhancement violated the Sixth Amendment. See
Booker, 543 U.S. at 244. The Government concedes that Jones
preserved this error for appeal. The Government, however, has
not shown beyond a reasonable doubt that the error was harmless.
See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir.
2005). Accordingly, Jones’s sentence is vacated, and this case
is remanded for resentencing. Because we remand for resentencing
based on the brandishing of a firearm enhancement, we do not
reach Jones’s arguments with respect to the enhancement for
abducting his victims and the denial of a reduction for being a
minor participant.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.