United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 19, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-40877
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS TREMAIN ARNOLD,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont Division
_________________________________________________________________
Before KING, GARWOOD and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In a previous opinion in this case, after affirming Arnold’s
convictions, we ordered a limited remand to the district court with
respect to the enhancement of his sentence on Count One. United
States v. Arnold, 467 F.3d 880, 888 (5th Cir. 2006). We did so
because the record was inadequate to determine whether Arnold had
been prejudiced by the Government’s statutory citation error in its
pre-trial Sentencing Enhancement Notice, which reflected the
Government’s intention to seek a sentence of ten years to life.
Arnold went to trial and was convicted. After his conviction, the
Government corrected the citation error in an amended notice, which
now reflected that the Government intended to seek a mandatory life
sentence on Count One.1 Id.
On remand, the district court, after holding a hearing, held
that, regardless of whether the burden was on Arnold to show he had
no pretrial notice of the Government’s intention to seek a
mandatory life sentence, or instead on the Government to show that
he did have such notice, it was clear that Arnold was not
adequately notified of the possibility of a mandatory life
sentence. Further, he had been prejudiced because “[w]ithout
notice that he would face a mandatory enhancement ... Arnold did
not have adequate information to decide whether to enter a plea or
go to trial. Therefore, Arnold’s substantive rights were
affected.”
The case is now back before us. Based on the district court’s
finding of prejudice, the sentence imposed on Count One is VACATED
and the case is REMANDED for re-sentencing.
SENTENCE ON COUNT ONE VACATED; REMANDED FOR RE-SENTENCING.
1
Arnold was also sentenced to concurrent terms of 120 months
on Count Two and 60 months on Count Three.
2