USA v. Reed

Filing 920060519

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
May 19, 2006 Charles R. Fulbruge III Clerk

No. 04-41609 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CLYDE TINER REED, III, Defendant-Appellant. -------------------Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-253-1 -------------------Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* Clyde Tiner Reed, III, appeals his sentence following his guilty plea conviction for distribution of crack cocaine. Reed

argues that his sentence was improper under United States v. Booker, 543 U.S. 220 (2005), because it was based on facts that were neither found by a jury nor admitted by him. Reed's assertion of Booker error is correct. He preserved

this error by raising an objection to his sentence grounded in Blakely v. Washington, 542 U.S. 296 (2004). See United States v.

Garza, 429 F.3d 165, (5th Cir. 2005), cert. denied, 126 S. Ct. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41609 -21444 (2006). When, as is the case here, a Booker error has been

preserved in the district court, we "will ordinarily vacate the sentence and remand, unless [this court] can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure." United States v. Pineiro, 410 F.3d 282, 284 (5th

Cir. 2005) (internal quotation marks and citation omitted). The Government has not met its "arduous" burden of demonstrating "beyond a reasonable doubt that the Sixth Amendment Booker error did not affect the sentence that [Reed] received." F.3d at 285, 287. Pineiro, 410

Consequently, Reed's sentence is VACATED, and

the case is REMANDED FOR RESENTENCING.