United States v. Joseph Casey

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT November 2, 2005 No. 05-10241 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 04-80042-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH CASEY,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (November 2, 2005)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Joseph Casey appeals his 120-month sentence imposed after he was convicted following his plea of guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The only issue he raises concerns the effect of

United States v. Booker, 543 U.S.___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on

his sentence. As the government correctly concedes, there was non-constitutional

Booker error in this case, it was preserved, and the government cannot show it was

harmless. Accordingly, Casey is entitled to be resentenced.

The sentence is VACATED, and the case is REMANDED with instructions

that Casey is to be resentenced in accord with the Booker decision.