United States v. Smelosky

* 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this opinion should not be published and is not precedent except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 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11055
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NANCY GUTIERREZ SMELOSKY, also known as Nancy Smelosky,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-39-ALL-A
--------------------
Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Nancy Gutierrez Smelosky appeals the 46-month sentence
imposed following her conviction for mail fraud, relying on
United States v. Booker, 543 U.S. 220 (2005), and arguing that
her Sixth Amendment rights were violated because her sentence was
enhanced based on facts not alleged in the indictment, proved to
a jury beyond a reasonable doubt, or admitted by her. Because
Smelosky preserved the issue, we review for harmless error, which
requires the Government to demonstrate beyond a reasonable doubt

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No. 04-11055
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that the district court would have imposed the same sentence if
the Sentencing Guidelines had been advisory. See United States
v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
As the Government concedes, because the district court
enhanced Smelosky’s sentence based on its own factual
determinations, the district court committed error under Booker.
See Pineiro, 410 F.3d at 286. We also conclude that the error
was not harmless. The fact that the court sentenced Smelosky to
the maximum sentence within the guidelines range is insufficient
to satisfy the Government’s burden. See United States v. Woods,
440 F.3d 255, 258-59 (5th Cir. 2006). Nor are the district
court’s comments at sentencing addressing the issue of an upward
departure sufficient to demonstrate that the Booker error was
harmless. See Woods, 440 F.3d at 260-61 (rejecting Government’s
argument that Booker error was harmless in the light of the
sentencing court’s narrow rejection of an upward departure).
The Government has not satisfied its burden of demonstrating
beyond a reasonable doubt that the court would have imposed the
same sentence but for the Booker error. See Pineiro, 410 F.3d at
286-87. Accordingly, we vacate Smelosky’s sentence and remand
for resentencing.
Smelosky’s arguments that a greater sentence at resentencing
would implicate ex post facto and due process concerns are
premature, and we do not address them. See Amar v. Whitley,

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No. 04-11055
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100 F.3d 22, 23 (5th Cir. 1996); In re Talbott Big Foot, Inc.,
924 F.2d 85, 87 (5th Cir. 1991).
SENTENCE VACATED; REMANDED FOR RESENTENCING.

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