United States v. Council , 168 F. App'x 631 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41575
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIEN DESHONG COUNCIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:03-CR-6-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Damien Deshong Council appeals his conviction following a
jury trial and sentence for possession of a controlled substance
(“crack”) with the intent to distribute, possession of a firearm
by a felon, and using, carrying, or possessing a firearm during
and in relation to a drug-trafficking crime. 18 U.S.C.
§§ 922(g)(1), 924(c)(1); 21 U.S.C. § 841(a)(1). Council
challenges the sufficiency of the evidence supporting his
convictions for possession of a firearm by a felon and for using,
*
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this opinion should not be published and is not precedent except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. 04-41575
-2-
carrying, or possessing a firearm during and in relation to a
drug-trafficking crime. We have determined that a rational trier
of fact could have found that the evidence established Council’s
guilt beyond a reasonable doubt as to both counts. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Thus, we AFFIRM Council’s
conviction as to these counts.
Council argues that the district court enhanced his sentence
based on his career offender status in violation of the Sixth
Amendment. We have held, however, that a judge’s determination
of career offender status does not implicate United States v.
Booker, 543 U.S. 220 (2005), because, except for the defendant’s
age, “[c]areer offender status is not ‘a sentencing judge’s
determination of a fact other than a prior conviction.’” United
States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005), cert.
denied, ___S. Ct.___, 2006 WL 37646 (Jan. 9, 2006) (No. 05-7643).
The Government concedes, however, that it cannot meet its burden
of establishing beyond a reasonable doubt that the district
court’s error in sentencing Council pursuant to a mandatory
sentencing guidelines scheme, so-called “Fanfan” error, was
harmless. See United States v. Walters, 418 F.3d 461, 464 (5th
Cir. 2005). Therefore, Council’s sentence, which included
alternative sentences, is VACATED in its entirety and the case is
REMANDED for further proceedings consistent with Booker.