USA v. Gorton

Filing 920060201

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 31, 2006 Charles R. Fulbruge III Clerk No. 04-41528 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES ELLIOTT GORTON, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-270-ALL -------------------Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* James Elliott Gorton appeals the 188-month sentence he received following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Gorton argues that the armed career criminal enhancement violated his constitutional rights because the predicate convictions were not charged in the indictment nor admitted at rearraignment. The argument is without merit. See United States v. Guevara,

408 F.3d 252, 261 (5th Cir.), cert. denied, 2006 U.S. LEXIS 741

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41528 -2(U.S. Jan. 9, 2006). Gorton properly acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but seeks to preserve the issue for further review. Gorton also contends that the district court erred in sentencing him pursuant to the mandatory Guidelines regime held unconstitutional in United States v. Booker, 543 U.S. 220 (2005). The sentencing transcript is devoid of evidence that the district court would have imposed the same sentence under an advisory regime, and, therefore, the Government has not borne its burden of establishing beyond a reasonable doubt that the district court's error was harmless. See United States v. Walters, 418 Accordingly, Gorton's sentence is See

F.3d 461, 464 (5th Cir. 2005).

VACATED, and the case is REMANDED for further proceedings. id. at 466.

AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER PROCEEDINGS.