United States v. Dennington

173 F. App'x 359

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 10, 2006

Charles R. Fulbruge III Clerk No. 04-40936 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY DEWAYNE DENNINGTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-245-1-MAC --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40936 -2-

Dennington’s assertion of sentencing error is meritorious.

See United States v. Booker, 543 U.S. 220 (2005). He preserved

this error by raising an objection to his sentence grounded in

Blakely v. Washington, 124 S. Ct. 2531 (2004). See United States

v. Garza, 429 F.3d 165, (5th Cir. 2005), cert. denied, 126 S. Ct.

1444 (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 RESENTENCING.