United States v. Bittick

* 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opinion should not be published and is not precedent except under the limited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, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41126
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SHAIN BITTICK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-137-RAS-DDB
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Michael Shain Bittick pleaded guilty to receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2), for which
he was sentenced to a 121-month prison term and three years of
supervised release. Bittick now appeals, challenging only his
sentence.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
Bittick contends that the district court erred when it increased
his offense level under the Sentencing Guidelines by a total of
sixteen levels. In light of the Supreme Court’s recent decision in

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United States v. Booker, 125 S. Ct. 738, 756 (2005), this increase
violated Bittick’s Sixth Amendment right to a sentence not
exceeding the maximum authorized by his guilty plea.
Where, as here, a defendant has preserved a Booker
challenge in the district court, “we will ordinarily vacate the
sentence and remand, unless we can say the error is harmless under
Rule 52(a) of the Federal Rules of Criminal Procedure.” United
States v. Mares, 402, 511, 520 n.9 (5th Cir. 2005), petition for
cert. filed, No. 04-9517 (U.S. Mar. 31, 2005). In this case, as
the Government concedes, it has not met its burden of demonstrating
beyond a reasonable doubt that the Sixth Amendment violation at
issue did not contribute to the sentence that Bittick received.
See United States v. Akpan, F.3d , No. 03-20875, 2005 WL
852416 at *12 (5th Cir. Apr. 14, 2005). Accordingly, we vacate
Bittick’s sentence and remand for resentencing. See id.
VACATED AND REMANDED FOR RESENTENCING.

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