Summary Calendar UNITED STATES OF AMERICA v. Walter Clancy Robinson

* 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this opinion should not be published and is not precedent except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
April 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20078
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WALTER CLANCY ROBINSON
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-382-1
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Walter Clancy Robinson pleaded guilty to bank fraud and
aiding and abetting and was sentenced to 71 months of
imprisonment, five years of supervised release, $43,682 in
restitution, and a $100 special assessment.
Robinson argues that under Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005),
his Sixth Amendment rights were violated when the district court
held him accountable under relevant conduct for three fraudulent

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No. 04-20078
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checks that were ordered and deposited by others after his arrest
based on facts that were not admitted by him or found by a jury.
Robinson preserved this issue in the district court. See United
States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005). Therefore,
we review Robinson’s claim for harmless error. See United States
v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
The district court committed a Booker error by increasing
Robinson’s sentence based on facts that were neither admitted by
him nor found by a jury beyond a reasonable doubt. See Booker,
543 U.S. at 244. The Government has not demonstrated that the
district court’s error was harmless beyond a reasonable doubt.
See Pineiro, 410 F.3d at 285. Accordingly, we vacate Robinson’s
sentence and remand for resentencing.
Robinson also argues that loss amounts other than the amount
to which he pled guilty do not constitute relevant conduct under
U.S.S.G. § 1B1.3. However, because we are vacating and remanding
Robinson’s entire sentence, we need not address this issue. See
Akpan, 407 F.3d at 377 n.62.
SENTENCE VACATED; CASE REMANDED.

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