United States v. Dennington

180 F. App'x 496

Opinion

PER CURIAM:

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Gary Dewayne Dennington pleaded guilty to one charge of mail fraud and was sentenced to serve 37 months in prison and a three-year term of supervised release. Dennington argues on appeal that his sentence is invalid because it was based on facts that were neither admitted by him nor found by a jury. He also contends that the district court erred in enunciating an alternate sentence.

Dennington’s assertion of sentencing error is meritorious. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He preserved this error by raising an objection to his sentence grounded in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See United States v. Garza, 429 F.3d 165, (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1444, 164 L.Ed.2d 143 (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 [Dennington] received.” Pineiro, 410 F.3d at 285, 287. Further, it would not be appropriate for us to impose the alternate sentence articulated by the district court. See United States v. Adair, 436 F.3d 520, 524, 527-29 (5th Cir.2006). Consequently, Dennington’s sentence is VACATED, and the case is REMANDED FOR RESEN-TENCING.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.