United States v. Bowens

161 F. App'x 383

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 4, 2006
• Docket: 01-60490
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

Defendant-Appellant Mack Arthur Bow-ens was convicted of various drug distribution and possession charges, as well as obstruction of justice. We affirmed. 1 After the Supreme Court decided United States v. Booker, 2 it vacated Bowens’s sentence and remanded to this Court for further consideration in light of that decision. We requested and received supplemental letter briefs addressing the impact of Booker.

As Bowens preserved his Booker issue at the district court, we review for harmless error. 3 Under harmless error review, the burden is on the government to point to evidence that would prove, beyond a reasonable doubt, that the district court would not have sentenced the defendant differently. 4 *We have noted that this is an “arduous burden” and that this Court “will ordinarily vacate and remand” when Booker error has been preserved. 5 Here, the government cannot meet that burden. The government cannot point to anything in the record suggesting that the judge would have imposed the same sentence upon Bowen absent the mandatory guidelines. 6

Accordingly, we REMAND to the district court to allow the district court to resentence Bowens if, in its discretion under the now-advisory Guidelines, it chooses to do so.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 . United States v. Bowens, 108 Fed. Appx. 945 (5th Cir.2004) (per curiam).

2 . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

3 . United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.2005).

4 . United States v. Akpan, 407 F.3d 360, 367 (5th Cir.2005).

5 . United States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir.2005) (quoting Mares, 402 F.3d at 520 n. 9).

6 . Cf. United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir.2005) (finding preserved Booker error harmless when the sentencing judge stated that should the Supreme Court hold the federal guidelines unconstitutional, the court would impose the same sentence); United States v. Nelson, 145 Fed.Appx. 82, 83 (5th Cir.2005) (finding preserved Booker error harmless when the sentencing judge expressed disappointment that there was not a greater statutory maximum and indicated that a sentence above the maximum would have been appropriate).