United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-40960
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANTHONY GODIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-67-6
Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Anthony Godin appeals the sentence imposed July 14, 2004
by the district court following his guilty-plea conviction for
conspiracy to possess with the intent to distribute cocaine. As
his sole point of error on appeal, Godin argues that under Blakely
v. Washington, 542 U.S. 296 (2004), and the Sixth Amendment, only
the facts admitted by him in conjunction with his guilty plea
*
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opinion should not be published and is not precedent except under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.
should have been used to enhance his sentencing range.
Under United States v. Booker, 543 U.S. 220 (2005), where a
defendant’s sentencing range is increased based on facts not found
by a jury or admitted by the defendant, the sentence violates the
Sixth Amendment. United States v. Cain, 440 F.3d 672, 676 (5th
Cir. 2006). Because Godin preserved his Sixth Amendment argument
for review on appeal by raising a Blakely objection in the district
court, our review is for harmless error. See United States v.
Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).
There is nothing in the record that would support a
determination that the district court would have imposed the same
sentence absent its reliance, for sentencing guideline enhancement
purposes, on facts not found by a jury nor found beyond a
reasonable doubt and not admitted by the defendant. Id. The
government concedes it cannot make the requisite showing of
harmlessness. Accordingly, Godin’s sentence is VACATED and the
case is REMANDED for resentencing.
2