United States v. Shed

135 F. App'x 705

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 20, 2005

Charles R. Fulbruge III Clerk No. 04-10772 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN SHED,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:03-CR-316-1-A --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Kevin Shed appeals his guilty-plea convictions and sentence

for conspiracy to possess with intent to distribute more than five

kilograms of cocaine and more than 50 grams of cocaine base and

conspiracy to commit laundering of monetary proceeds. Shed first

argues that the district court abused its discretion by denying his

motion to withdraw his guilty plea. “[A] district court may, in

its discretion, permit withdrawal before sentencing if the

defendant can show a ‘fair and just reason.’” United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-10772 -2-

Powell, 354 F.3d 362, 370 (5th Cir. 2003). A review of the seven

relevant factors reveals that the district court did not abuse its

discretion by denying Shed’s motion to withdraw his guilty plea.

See United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).

Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Shed

argues that the district court erred by calculating his offense

level and criminal history on the basis of facts not admitted by

him or found beyond a reasonable doubt. After briefing was

completed, the Supreme Court held in United States v. Booker, 125

S. Ct. 738, 756 (2005), that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Booker also struck down 18 U.S.C.

§ 3553(b)(1) and thus rendered the Guidelines advisory only. Id.

at 764-65.

The district court enhanced Shed’s sentence based on several

factual findings not admitted by Shed, and Shed objected to these

enhancements on Blakely grounds. Shed’s sentence of life

imprisonment thus exceeded the maximum sentence that could have

been imposed based solely on his plea and constituted a Sixth

Amendment violation under Booker. See Booker, 125 S. Ct. at 769.

When, as here, the defendant has preserved his error, we will

ordinarily vacate the sentence and remand, unless we can say that

the error is harmless under FED. R. CRIM. P. 52(a). See United No. 04-10772 -3-

States v. Akpan, __ F.3d __, No. 03-20875, 2005 WL 852416 at *11

(5th Cir. Apr. 14, 2005). Under this standard, the Government

bears the burden of demonstrating beyond a reasonable doubt that

the constitutional error did not contribute to the defendant's

sentence. Id. at *12. Were we to review Shed’s sentence for

harmless error, we would find that the error here was harmful; we

cannot say beyond a reasonable doubt that the mandatory nature of

the Sentencing Guidelines at the time of Shed’s sentence did not

contribute to the sentence that he received. See id. Accordingly,

Shed’s sentence must be vacated and remanded for resentencing.

VACATED AND REMANDED.