United States v. Batey

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 12, 2005
• Docket: 04-41009
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 12, 2005

Charles R. Fulbruge III Clerk No. 04-41009

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TEHRAN ANDRE BATEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-67-2 --------------------

Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL, District Judge.*

PER CURIAM:**

Tehran Batey appeals the sentence he received following his

guilty plea for possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a). He renews his argument,

preserved in the district court, that his constitutional rights

were violated when the district court assessed a two-level

* District Judge for the Southern District of Texas, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41009 -2-

enhancement for possession of a firearm, pursuant to §

2D1.1(b)(1) (2003), citing Blakely v. Washington, 159 L.Ed. 2d

403 (2004).

The government concedes that it cannot meet its burden under

a harmless error analysis that the mandatory nature of the

guidelines did not contribute to the sentence imposed. United

States v. Akpan, ___ F.3d ___, No. 03-20875, 2005 WL 852416 at

*12 (5th Cir. April 14, 2005). Accordingly, Batey’s sentence

must be vacated and remanded for resentencing consistent with

Booker, 125 S.Ct. 738 (2005).

VACATED and REMANDED.