United States v. Gorton

* 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this opinion should not be published and is not precedent except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
January 31, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41528
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ELLIOTT GORTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-270-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
James Elliott Gorton appeals the 188-month sentence he
received following his guilty-plea conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Gorton argues that the armed career criminal enhancement violated
his constitutional rights because the predicate convictions were
not charged in the indictment nor admitted at rearraignment.
The argument is without merit. See United States v. Guevara,
408 F.3d 252, 261 (5th Cir.), cert. denied, 2006 U.S. LEXIS 741

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No. 04-41528
-2-
(U.S. Jan. 9, 2006). Gorton properly acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), but seeks to preserve the issue for
further review.
Gorton also contends that the district court erred in
sentencing him pursuant to the mandatory Guidelines regime held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
The sentencing transcript is devoid of evidence that the district
court would have imposed the same sentence under an advisory
regime, and, therefore, the Government has not borne its burden
of establishing beyond a reasonable doubt that the district
court’s error was harmless. See United States v. Walters, 418
F.3d 461, 464 (5th Cir. 2005). Accordingly, Gorton’s sentence is
VACATED, and the case is REMANDED for further proceedings. See
id. at 466.
AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER
PROCEEDINGS.

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