United States v. Reed

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 19, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41609
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLYDE TINER REED, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-253-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Clyde Tiner Reed, III, appeals his sentence following his
guilty plea conviction for distribution of crack cocaine. Reed
argues that his sentence was improper under United States v.
Booker, 543 U.S. 220 (2005), because it was based on facts that
were neither found by a jury nor admitted by him.
Reed’s assertion of Booker error is correct. He preserved
this error by raising an objection to his sentence grounded in
Blakely v. Washington, 542 U.S. 296 (2004). See United States v.
Garza, 429 F.3d 165, (5th Cir. 2005), cert. denied, 126 S. Ct.

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No. 04-41609
-2-
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 [Reed] received.” Pineiro, 410
F.3d at 285, 287. Consequently, Reed’s sentence is VACATED, and
the case is REMANDED FOR RESENTENCING.

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