United States v. Harvey

* 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this opinion should not be published and is not precedent except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 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60995
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER HARVEY, also known as Toot,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:04-CR-29-ALL
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Christopher Harvey appeals his 151-month sentence following
a guilty plea for distribution of methamphetamine. 21 U.S.C.
§ 841(a)(1), (b)(1)(C). Harvey argues that the district court
enhanced his sentence under U.S.S.G. § 4B1.1 based on his career
offender status in violation of United States v. Booker, 543 U.S.
220 (2005). We have held, however, that a judge’s determination
of career offender status does not implicate Booker, because,
except for the defendant’s age, “[c]areer offender status is not

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No. 04-60995
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‘a sentencing judge’s determination of a fact other than a prior
conviction.’” United States v. Guevara, 408 F.3d 252, 261 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006).
Harvey also raises on appeal the issue of the district
court’s mandatory application of the Sentencing Guidelines or
so-called “Fanfan” error. Although the Government argues that
Harvey has not preserved this issue for appeal, Harvey preserved
the issue by raising an objection under Blakely v. Washington,
542 U.S. 296 (2004), in the district court, and, therefore we
review the district court’s “Fanfan” error under the harmless
error standard of review. See United States v. Rodriguez-Mesa,
443 F.3d 397, 404 (5th Cir. 2006) (a Blakely objection before
the district court preserves a Fanfan error for appeal). The
Government has not shown beyond a reasonable doubt that the error
was harmless. See United States v. Walters, 418 F.3d 461, 463-66
(5th Cir. 2005). Accordingly, Harvey’s sentence is VACATED, and
this case is REMANDED for resentencing.

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