United States v. Johnson

* 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this opinion should not be published and is not precedent except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
August 19, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHARON SURLES JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-419-ALL-H
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Sharon Surles Johnson appeals her sentence for fraudulent
use of a social security number in violation of 42 U.S.C.
§ 408(a)(7)(B). She argues that the district court committed
error under United States v. Booker, 125 S. Ct. 738 (2005), when
it added seven offense levels to her base offense level for the
amount of loss attributable to her offense conduct.
Johnson preserved this issue by arguing that her sentence
violated Blakely v. Washington, 542 U.S. 296 (2004). See United

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No. 04-11016
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States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005). Because it
sentenced Johnson based on conduct that was neither admitted by
Johnson nor proven beyond a reasonable doubt to a jury, the
district court committed error under Booker, 125 S. Ct. at 756.
The Government argues that the record demonstrates beyond a
reasonable doubt that the district court would not have sentenced
Johnson differently had it acted under advisory Guidelines. The
Government’s arguments do not meet the “arduous” burden of
demonstrating “beyond a reasonable doubt that the Sixth Amendment
Booker error did not affect the sentence.” See United States v.
Pineiro, 410 F.3d 282, 284-85, 287 (5th Cir. 2005). Accordingly,
Johnson’s sentence is VACATED, and the case is REMANDED FOR
RESENTENCING. See id. at 285-87.

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