USA v. Bowens, No. 01-60490 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS January 4, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 01-60490 Summary Calendar United States of America Plaintiff-Appellee, versus Mack Arthur Bowens Defendant-Appellant. Appeal from the United States District Court For the Northern District of Mississippi ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Defendant-Appellant Mack Arthur Bowens was convicted of various drug distribution and possession charges, as well as obstruction of justice. We affirmed.1 After the Supreme Court decided United States v. Booker,2 it vacated Bowens s sentence and remanded to this Court for further consideration in light of that * Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 United States v. Bowens, 108 Fed. Appx. 945 (5th Cir. 2004) (per curiam). 2 125 S.Ct. 738 (2005). decision. We requested and received supplemental letter briefs addressing the impact of Booker. As Bowens preserved his Booker issue at the district court, we review for harmless error.3 Under harmless error review, the burden is on the government to point to evidence that would prove, beyond a reasonable doubt, that the district court would not have sentenced the defendant differently.4 We have noted that this is an arduous burden and that this Court will ordinarily vacate and remand when Booker error has been preserved.5 Here, the government cannot meet that burden. The government cannot point to anything in the record suggesting that the judge would have imposed the same sentence upon Bowen absent the mandatory guidelines.6 Accordingly, we REMAND to the district court to allow the district court to resentence Bowens if, in its discretion under the now-advisory Guidelines, it chooses to do so. 3 United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005). 4 United States v. Akpan, 407 F.3d 360, 367 (5th Cir. 2005). 5 United States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir. 2005) (quoting Mares, 402 F.3d at 520 n.9). 6 Cf. United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir. 2005) (finding preserved Booker error harmless when the sentencing judge stated that should the Supreme Court hold the federal guidelines unconstitutional, the court would impose the same sentence); United States v. Nelson, 145 Fed. Appx. 82, 83 (5th Cir. 2005) (finding preserved Booker error harmless when the sentencing judge expressed disappointment that there was not a greater statutory maximum and indicated that a sentence above the maximum would have been appropriate). 2
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