United States v. Henefield

* 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this opinion should not be published and is not precedent except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 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50832
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER FRANK HENEFIELD,
Defendant-Appellant.
* * * * * * *
Consolidated with
No. 04-50844
* * * * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER HENEFIELD,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-55-6-XR
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*

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No. 04-50832 c/w
04-50844
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Alexander Frank Henefield pleaded guilty to conspiracy to
manufacture and distribute methamphetamine and to possession with
intent to distribute marijuana. In anticipation that the Supreme
Court might hold that the United States Sentencing Guidelines
were invalid under Blakely v. Washington,124 S. Ct. 2531 (2004),
the district court imposed alternative sentences: one sentence
under the Sentencing Guidelines and a second, discretionary
sentence to take effect if the Sentencing Guidelines were
invalidated. The government concedes that under the Supreme
Court’s decision in United States v. Booker,125 S.Ct. 738 (2005),
Henefield’s sentence “was not harmless error” because the
district court would have imposed a lesser sentence under an
advisory Sentencing Guideline scheme. Accordingly, we vacate
Henefield’s sentence and remand the case for resentencing. See
United States v. Mares, 402 F.3d 511 (5th Cir.), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517).
The record provides no support for Henefield’s argument that
his guilty plea was not knowing and voluntary. See United States
v. Johnson, 1 F.3d 296, 302-03 (5th Cir. 1993) (en banc).
Henefield’s argument that the district court erred by refusing to
allow him to withdraw his plea is frivolous as Henefield did not
make such a request in the district court.
AFFIRMED; SENTENCE VACATED AND REMANDED.

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No. 04-50832 c/w
04-50844
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