United States v. McCall

* 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this opinion should not be published and is not precedent except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 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-31216
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN KEITH MCCALL,
also know as Sealed Defendant #2,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 03-CR-15-B-2
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Bryan Keith McCall appeals his sentence for aiding and
abetting the attempted bribery of a public official. McCall argues
that his 86-month sentence must be vacated in light of United
States v. Booker, 125 S. Ct. 738 (2005) because it is based on
contested facts not established by McCall’s guilty plea.
In Booker, the Supreme Court held 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

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No. 03-31216
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of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
756. Booker also struck down 18 U.S.C. § 3553(b)(1) and thus
rendered the Sentencing Guidelines advisory rather than mandatory.
Id. at 764-65.
The district court found that the purpose of McCall’s
attempted bribery was to obstruct justice in a drug-trafficking
prosecution and calculated his sentence using an estimated quantity
of drugs reasonably attributable to the drug conspiracy. McCall
objected that his sentence should be computed using the Sentencing
Guideline for simple bribery because there was “no evidence” that
he was involved in the drug conspiracy. McCall’s 86-month sentence
exceeded the maximum sentence that could have been imposed based
solely on his plea and, thus, constituted a Sixth Amendment
violation under Booker. See Booker, 125 S. Ct. at 769.
When, as here, a defendant has preserved a Booker Sixth
Amendment error in the district court, we will ordinarily vacate
the sentence and remand, unless we determine that the error is
harmless under Fed. R. Crim. P. 52(a). United States v. Akpan, 407
F.3d 360, 376 (5th Cir. 2005). Under Akpan, the Government must
establish beyond a reasonable doubt that the Booker error did not
contribute to McCall’s sentence. Akpan, 407 F.3d at 377. Because
we conclude that the Government has not met its burden of showing
that McCall’s 86-month sentence is harmless under Booker, we vacate

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McCall’s sentence and remand the case to the district court for
resentencing.
VACATED AND REMANDED.

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