United States v. McCoy ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-11290
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL SHANNON McCOY
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-127-ALL
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Michael Shannon McCoy appeals the sentence he received
following his guilty-plea conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g).
He argues that his sentence was wrongfully enhanced based on
judicially determined facts, in violation of United States v.
Booker, 543 U.S. 220 (2005). Following Booker, the district
court erred in imposing a four-level adjustment based on the
judicial determination that McCoy’s firearms possession was done
*
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this opinion should not be published and is not precedent except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. 04-11290
-2-
in connection with another felony offense. 543 U.S. at 244. As
McCoy preserved the issue, we review for harmless error, which
requires the Government to demonstrate beyond a reasonable doubt
that the district court would have imposed the same sentence if
the Sentencing Guidelines had been advisory. See United States
v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
The Government urges that the error was harmless because
McCoy’s criminal history score underrepresented the seriousness
of his prior crimes and would be grounds for an upward departure.
However, the record demonstrates that the district court declined
to upwardly depart on that basis. Moreover, the fact that the
court sentenced McCoy near the top of the guidelines range is
insufficient to satisfy the Government’s burden. See United
States v. Woods, 440 F.3d 255, 260-62 (5th Cir. 2005).
The Government has failed to carry its burden of
demonstrating beyond a reasonable doubt that the Booker error was
harmless in the instant case. Accordingly, McCoy’s sentence is
VACATED, and the case is REMANDED for resentencing.