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United States v. Ball , 182 F. App'x 306 ( 2006 )


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  •                                                               United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                         May 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-11291
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK EDWARD BALL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-93-ALL-P
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jack Edward Ball appeals the sentence imposed following his
guilty-plea conviction for two counts of theft or receipt of
stolen mail matter, arguing that it violates the Sixth Amendment
rule announced in Blakely v. Washington,
    542 U.S. 296
     (2004).
Ball’s Blakely objection in the district court preserved whether
Ball’s sentence violated United States v. Booker,
    543 U.S. 220
    (2005), for appeal.      Accordingly, we review for harmless error,
which requires a showing beyond a reasonable doubt that the
*
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opinion should not be published and is not precedent except under the limited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. 04-11291
-2-
district court would have imposed the same sentence if it had
been operating under an advisory guidelines system.     See United
States v. Pineiro,
    410 F.3d 282
    , 284 (5th Cir. 2005).
Our review of the record convinces us that the error in this
case cannot be considered harmless.   Although the district court
sentenced Ball at the top of the guideline range authorized by
the then-mandatory guidelines range, that fact is insufficient,
standing alone, to satisfy the Government’s burden.     See United
States v. Woods,
    440 F.3d 255
    , 258-59 (5th Cir. 2006).    The
district court’s comments about the seriousness of Ball’s offense
and the impact of his offense shed no additional light on what
the court would have done if the Guidelines had been advisory;
they may simply reflect why the court believed the sentence was
appropriate within the mandatory guidelines framework.    Cf.
United States v. Garza,
    429 F.3d 165
    , 170 (5th Cir. 2005), cert.
denied,
    126 S. Ct. 1444
     (2006).
Ball has abandoned on appeal his challenge to the district
court’s calculation of his criminal history score.    See United
States v. Valdiosera-Godinez,
    932 F.2d 1093
    , 1099 (5th Cir.
1991).
SENTENCE VACATED; REMANDED FOR RESENTENCING.