United States v. Young , 177 F. App'x 456 ( 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 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-20628
Summary Calendar
UNITED STATES OF AMERICA,
Petitioner-Appellee,
versus
JUSTIN EVERETT YOUNG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-443-1
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Justin Everett Young appeals his conviction and sentence on
one count of possession of cocaine with intent to distribute in
violation of 18 U.S.C. § 841(a), (b); one count of possession of a
firearm during a drug trafficking offense, a violation of 18 U.S.C.
§ 924(a)(2), (c)(1)(A); and one count of possession of a firearm by
a felon, a violation of 18 U.S.C. § 922(g)(1). For the following
reasons, we affirm his convictions, but we vacate his sentence and
remand for resentencing.
*
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this opinion should not be published and is not precedent except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. 04-20628
-2-
In his first assignment of error, Young argues that the
application of U.S.S.G. § 3A1.2(b)(1), which provides for a three-
level increase if the defendant assaulted a law enforcement
officer, constituted Sixth Amendment error in light of United
States v. Booker, 543 U.S. 220 (2005). We agree. We reject the
Government’s argument that Young admitted the facts supporting the
enhancement and, therefore, there was no Sixth Amendment Booker
error. Young made no statements admitting that he knew or had
reason to believe that the officer was a law enforcement officer.
To the contrary, he repeatedly denied such assertions. As the
district court applied the § 3A1.2(b)(1) enhancement based on facts
that were neither admitted by Young nor found by a jury beyond a
reasonable doubt, the district court committed Sixth Amendment
error. See United States v. Pineiro, 410 F.3d 282, 284 (5th Cir.
2005). Moreover, even absent the Sixth Amendment error, the
mandatory application of the Guidelines was “Fanfan” error, which
Young preserved. See United States v. Rodriguez-Mesa, F.3d ,
No. 04-41757, 2006 WL 633280, at *5 (5th Cir. Mar. 15, 2006).
We further conclude that the Government has failed to carry
its burden of demonstrating that the error was harmless beyond a
reasonable doubt. See Pineiro, 410 F.3d at 286. The imposition of
a sentence at the top of the applicable guidelines range, without
more, is insufficient to show that the district court would have
imposed the same sentence under an advisory guidelines regime.
United States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006). The
No. 04-20628
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fact that the district court imposed a consecutive sentence for
Young’s firearms conviction likewise sheds no light on this issue
as the district court was required by statute to order the
sentences to run consecutively. See id.; 18 U.S.C.
§ 924(c)(1)(A)(i).
Young’s challenges to 21 U.S.C. §§ 841(a) and (b) and to his
conviction for possession of a firearm by a felon under 18 U.S.C.
§ 922(g)(1) are foreclosed by circuit precedent. See United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v.
Gresham, 118 F.3d 258, 264-65 (5th Cir. 1997); United States v.
Kuban, 94 F.3d 971 (5th Cir. 1996). Young concedes as much but
raises these arguments to preserve them for further review.
For the foregoing reasons, we AFFIRM Young’s conviction, but
we VACATE his sentence and REMAND for resentencing.