United States v. Sealed 1

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 16, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-41079
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SEALED APPELLANT 1,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
USDC No. 1:03-CR-67-12-RHC
_________________________________________________________________
Before JOLLY, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
The plea agreement in this case did not bar the instant appeal
because of representations made in open court that were
inconsistent with the written agreement. Consequently, we will
review the Booker error that was preserved at sentencing.
It is evident that the sentence, which was imposed under a
mandatory guidelines regime, constituted a Sixth Amendment
violation under the teachings of United States v. Booker, 125 S. Ct.
738 (2005). Because Sealed Appellant 1 preserved this error in the
district court, the question before us is whether the error was
*
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this opinion should not be published and is not precedent except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.
harmless beyond a reasonable doubt. See United States v. Pineiro,
410 F.3d 282, 284 (5th Cir. 2005). We hold that the error was
harmless beyond a reasonable doubt because even if the error were
cured, the sentence would be the same. We say this because the
district court made this point explicitly clear when it said:
The court will also note that in the event
that a higher court rules that the Sentencing
Guidelines, as some courts out west have
ruled, are completely invalid, that in that
case, the court would impose the same sentence
basically for the reasons set out since the
statutory provisions are up to 20 years, and
this is within that amount. Based on the
amount of drugs involved, based upon the
criminal history, based upon his role in the
conspiracy, the court would find that, in its
discretion, the same sentence of 86 months
would be appropriate.
Based on the above statement, we find the error harmless
beyond a reasonable doubt. Accordingly, the sentence is
AFFIRMED.
2