United States v. Williams

* 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this opinion should not be published and is not precedent except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
July 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60011
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LADAYTON WILLIAMS, also known as Daydemond,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:04-CR-13-1
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Ladayton Williams appeals his sentence following his guilty
plea to conspiracy to possess with intent to distribute in excess
of 50 grams of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846. Williams argues that his
sentence violates United States v. Booker, 125 S. Ct. 738 (2005),
because the district court applied a sentence enhancement for
possession of a firearm that was neither admitted nor found by a
jury.

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No. 05-60011
-2-
In Booker, the Supreme Court applied its holding in Blakely
v. Washington, 124 S. Ct. 2531 (2004), to the federal sentencing
guidelines and reaffirmed that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” The Court also
excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,
rendering the federal sentencing guidelines effectively advisory.
Id. at 764-65.
Williams preserved a Booker issue for appeal by objecting in
the district court based on Blakely. See United States v.
Pineiro, 410 F.3d 282, 285 (5th Cir. 2005). The Government does
not contest Williams’s assertion that he did not admit the facts
necessary for the firearm enhancement, and it concedes that error
occurred because the sentence was based on a mandatory
application of the sentencing guidelines. The Government also
concedes that it cannot meet its burden of showing beyond a
reasonable doubt that error was harmless. We agree and VACATE
the sentence and REMAND for resentencing. See Pineiro, 410 F.3d
at 287.
VACATED AND REMANDED.

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