United States v. Cleaver

* 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this opinion should not be published and is not precedent except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
October 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40148
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WAYNE CLEAVER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-100-3
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Wayne Cleaver appeals his guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute or
dispense 3, 4-methylenedioxy-methamphetamine (“MDMA” or
“ecstasy”), cocaine, methamphetamine and/or gamma
/hydroxybutyrate. See 21 U.S.C. § 846. Cleaver claims the court
erred, pursuant to United States v. Booker, 543 U.S. 220 (2005),
in assessing sentencing increases for relevant conduct based upon
uncorroborated statements and for his leadership role in the
offense. Cleaver’s objections to the Presentence Investigation

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No. 04-40148
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Report and at sentencing sufficiently apprised the court that he
was making a Sixth Amendment objection to being sentenced based
on facts not found by a jury. See United States v. Akpan, 407
F.3d 360, 376 (5th Cir. 2005). The increases violated Cleaver’s
Sixth Amendment right to a trial by jury, and the Government has
not met its burden of demonstrating the error was harmless beyond
a reasonable doubt. See United States v. Pineiro, 410 F.3d 282,
285-86 (5th Cir. 2005).
SENTENCE VACATED AND REMANDED FOR RESENTENCING.

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