United States v. Dennington , 173 F. App'x 359 ( 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 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-40936
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY DEWAYNE DENNINGTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-245-1-MAC
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Gary Dewayne Dennington pleaded guilty to one charge of mail
fraud and was sentenced to serve 37 months in prison and a three-
year term of supervised release. Dennington argues on appeal
that his sentence is invalid because it was based on facts that
were neither admitted by him nor found by a jury. He also
contends that the district court erred in enunciating an
alternate sentence.
*
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this opinion should not be published and is not precedent except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. 04-40936
-2-
Dennington’s assertion of sentencing error is meritorious.
See United States v. Booker, 543 U.S. 220 (2005). He preserved
this error by raising an objection to his sentence grounded in
Blakely v. Washington, 124 S. Ct. 2531 (2004). See United States
v. Garza, 429 F.3d 165, (5th Cir. 2005), cert. denied, 126 S. Ct.
1444 (2006). When, as is the case here, a Booker error has been
preserved in the district court, we “will ordinarily vacate the
sentence and remand, unless [this court] can say the error is
harmless under Rule 52(a) of the Federal Rules of Criminal
Procedure.” United States v. Pineiro, 410 F.3d 282, 284 (5th
Cir. 2005) (internal quotation marks and citation omitted). The
Government has not met its “arduous” burden of demonstrating
“beyond a reasonable doubt that the Sixth Amendment Booker error
did not affect the sentence that [Dennington] received.”
Pineiro, 410 F.3d at 285, 287. Further, it would not be
appropriate for us to impose the alternate sentence articulated
by the district court. See United States v. Adair, 436 F.3d 520,
524, 527-29 (5th Cir. 2006). Consequently, Dennington’s sentence
is VACATED, and the case is REMANDED FOR RESENTENCING.