United States v. Pilcher

* 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this opinion should not be published and is not precedent except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
September 29, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40986
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHELLE LENNETTE PILCHER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-84-RAS-DDB-3
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Michelle Lennette Pilcher appeals from her guilty-plea
conviction for possession or distribution of a listed chemical
with knowledge, or reason to know, of its wrongful intended use.
Pilcher argues that, in light of United States v. Booker, 125
S. Ct. 738 (2005), the district court erred in sentencing her
based upon facts that were not admitted by her or found by a
jury. The increases in Pilcher’s sentence for relevant conduct,
possession of a firearm, and creating a substantial risk of harm

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No. 04-40986
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to human life or the environment violated her Sixth Amendment
right to a trial by jury, and the Government has not carried its
burden of demonstrating that the errors were harmless. See
United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005).
Accordingly, Pilcher’s sentence is VACATED, and the case is
REMANDED FOR RESENTENCING.

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