United States v. Davis , 182 F. App'x 298 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-10049
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORREY LIDELL DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-210-1-G
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Torrey Lidell Davis appeals the sentence imposed following
his guilty-plea conviction for copyright infringement. Davis
contends that his sentence is illegal under United States v.
Booker, 543 U.S. 220 (2005), because it was based upon facts that
were neither proved nor admitted and because the sentence was
imposed pursuant to a mandatory application of the Sentencing
Guidelines.
*
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this opinion should not be published and is not precedent except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. 05-10049
-2-
The Government has not carried its burden of demonstrating
that the Booker error in this case was harmless. See United
States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).
Accordingly, Davis’s sentence is vacated, and the case is
remanded for resentencing. Because it is necessary to vacate
Davis’s sentence based upon the Sixth Amendment Booker error, we
need not address Davis’s Fanfan claim. See United States v.
Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.