United States v. Harrison

* This order is being entered by a quorum of this court
pursuant to 28 U.S.C. § 46(d).
** 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this opinion should not be published and is not precedent except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
June 21, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40160
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM HENRY HARRISON, also known as Wayne Green,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CR-2-1
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY and HIGGINBOTHAM, Circuit Judges.*
PER CURIAM:**
This court affirmed the conviction and sentence of William
Henry Harrison. The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker,
543 U.S. 220 (2005). We requested and received supplemental
briefs addressing the impact of Booker.

-- 1 of 4 --

No. 03-40160
-2-
In the district court and on appeal, Harrison challenged on
Sixth Amendment grounds the district court’s enhancement of his
sentence. In his supplemental brief, Harrison challenges his
sentences and his convictions on both counts on Sixth Amendment
grounds in the light of Blakely v. Washington, 542 U.S. 296
(2004), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Booker.
In Booker, the Supreme Court applied the Sixth Amendment
holdings in Blakely and Apprendi to the Federal Sentencing
Guidelines. Specifically, the Court held that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”
Booker, 543 U.S. at 244. The Court also excised 18 U.S.C.
§ 3553(b)(1) of the Sentencing Reform Act, rendering the Federal
Sentencing Guidelines effectively advisory. Id. at 258-60.
Because the Supreme Court vacated and remanded this case for
further consideration in light of Booker, Harrison’s arguments
that he was deprived of a fair trial because the Government
introduced perjured testimony and withheld favorable evidence are
not “within the purview of the mandate of the Supreme Court.”
See Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967).
To the extent that Harrison’s supplemental brief challenges the
sufficiency of the indictment, the sufficiency of the evidence,

-- 2 of 4 --

No. 03-40160
-3-
and the jury’s verdict, these issues too are beyond the scope of
the Booker remand. See id.
Harrison preserved his Sixth Amendment challenge in the
district court. See United States v. Olis, 429 F.3d 540, 544
(5th Cir. 2005). As the Government concedes, the district court
committed error under Booker by enhancing Harrison’s base offense
level by two levels for obstruction of justice under U.S.S.G.
§ 3C1.1 based on the district court’s factual findings. The
Government concedes that it cannot show that the Booker error was
harmless. See United States v. Pineiro, 410 F.3d 282, 286 (5th
Cir. 2005). Where, as here, a Booker error has been preserved in
the district court and this court cannot say that the error is
harmless, this court “will ordinarily vacate the sentence and
remand.” Id. at 284 (internal quotation marks and citation
omitted).
Harrison argues that resentencing violates the Double
Jeopardy Clause. The constitutional protection against double
jeopardy “prohibits resentencing only when a defendant has
developed a legitimate expectation of finality in his original
sentence.” United States v. Benbrook, 119 F.3d 338, 340 (5th
Cir. 1997). In challenging his sentence, Harrison has “opened
the door for the district court to revisit the entire sentence.”
Id.
Harrison argues that the remedial opinion in Booker has no
application in his case. However, we “‘must apply . . . both the

-- 3 of 4 --

No. 03-40160
-4-
Sixth Amendment holding and [the Court’s] remedial interpretation
of the Sentencing Act-to all cases on direct review.’” United
States v. Scroggins, 411 F.3d 572, 576-77 (5th Cir. 2005)(quoting
Booker, 543 U.S. at 268) (emphasis added).
Because the enhancement for obstruction of justice is Booker
error requiring remand for resentencing, we do not address
Harrison’s suggestion that his sentence was enhanced based on
drug quantity in violation of Booker, but we “leave to the
discretion of the district court, whether in its discretion, it
will impose the identical sentence with the identical departures
or enhancements, or both.” United States v. Akpan, 407 F.3d 360,
377 n.62 (5th Cir. 2005).
We VACATE Harrison’s sentences on both counts and REMAND in
accordance with Booker. We REINSTATE our judgment affirming
Harrison’s convictions.

-- 4 of 4 --