United States v. Horne

United States Court of Appeals
Fifth Circuit
F I L E D
June 20, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-40215
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TOMMY JAMES LEE HORNE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 1:03-CR-81-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed Tommy Horne’s con-
viction and sentence. United States v. Horne,
117 Fed. Appx. 327 (5th Cir. 2004) (per cur-
iam). The Supreme Court vacated and re-
manded for further consideration in light of
United States v. Booker, 125 S. Ct. 738
(2005). Horne v. United States, 125 S. Ct.
1749 (2005). We requested and received
supplemental letter briefs addressing the im-
pact of Booker.1
The government confesses error and the
need to remand for resentencing based on the
fact that the district court made a finding that
Horne was an armed career criminal under
U.S.S.G. § 4B1.4. Horne filed objections to
the presentence report, alleging (1) that there
was insufficient proof regarding the prior con-
victions; (2) the failure to submit the qualifying
armed career criminal convictions to the jury
as a violation of Apprendi v. New Jersey, 530
U.S. 466 (2000); and (3) the lack of sufficient
notice of the prior convictions. The district
court denied the objections and made the
finding that Horne is an armed career criminal.
Horne raised these issues on appeal, but we
held them foreclosed by Apprendi and United
States v. Stone, 306 F.3d 241 (5th Cir. 2002).
The government candidly acknowledges that
“in view of Horne’s Apprendi-based objection
to the [presentence report’s] calculation of im-
prisonment using his three prior convictions
and Armed Career Criminal status, it now ap-
pears that [Horne’s argument] should be re-
viewed under the harmless error standard in
light of . . . Booker” (citing United States v.
Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No.
04-9517), and United States v. Rodriguez, 398
F.3d 1291, 1296-97 (11th Cir. 2005)).
The government thus posits that the district
court’s “findings went beyond those admitted
by the defendant and were objected to at sen-
tencing.” In Mares, we directed that “if . . .
the Sixth Amendment issue presented in Book-
er . . . is preserved in the district court by an
objection, we will ordinarily vacate the sen-
tence and remand, unless we can say the error
is harmless under Rule 52(a) of the Federal
Rules of Criminal Procedure.” Mares, 402
F.3d at 520 n.9. The government recognizes
that the record does not support, beyond a
reasonable doubt, that the district court would
not have imposed a lesser sentence under an
advisory sentencing regime. Under Mares,
therefore, Horne is entitled to resentencing.
In his pro se supplemental letter brief,
Horne, in addition to addressing the Booker
issues we have discussed, requests that on re-
mand the district court take account of the in-
tervening decision in Shepard v. United States,
125 S. Ct. 1254 (2005). Indeed, Shepard
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 Horne was represented by counsel until the
opinion was issued, whereupon counsel obtained
leave of this court to withdraw as counsel. Horne
filed his certiorari petition pro se and continues to
represent himself at this time.

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addresses the Armed Career Criminal Act, and
the district court should consider it. We
express no view on whether Shepard affords
Horne any relief; that is for the district court to
decide.
The judgment of conviction is AFFIRMED
for the reasons stated in our initial opinion.
For the reasons set forth in this opinion, the
judgment of sentence is VACATED and
REMANDED for resentencing. We express
no view as to whether the sentence Horne re-
ceived, or for that matter any other particular
sentence, is “reasonable” as that concept is
discussed in Booker, 125 S. Ct. at 765-68, and
its progeny.

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