* 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this opinion should not be published and is not precedent except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

FILED

June 15, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30792

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v. 

KEITH SMITH, also known as Keith Cornell Smith

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:03-CR-235-ALL

--------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Keith Smith appeals his 262-month sentence for intent to

distribute narcotics in violation of 21 U.S.C. § 841(a)(1) and

§ 841(b)(1)(A). Smith contends that his sentence must be vacated

and his case remanded for re-sentencing in light of United States

v. Booker, 543 U.S. 220 (2005). Smith argues that the district

court committed reversible error by engaging in judicial factfinding in determining his sentence pursuant to the Sentencing

Guidelines regime found unconstitutional in Booker.
No. 04-30792

-2-

Under Booker, “[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 of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” 543 U.S. at 244. Additionally,

Booker excised portions of the Sentencing Reform Act that made

application of the Sentencing Guidelines mandatory. Id. at 258-

61.

A sentence based on a preserved Booker error must be vacated

unless the error is harmless. United States v. Pineiro, 410 F.3d

282, 284 (5th Cir. 2005). The Government concedes, and the

available record reflects, that Smith preserved a Booker claim. 

Therefore, the burden shifts to the Government to show the error

was harmless. The Government has provided no evidence that the

error was harmless.

Instead, the Government argues that Smith’s appeal is

untimely and that Smith failed to submit the required record on

appeal. The Government is mistaken on both counts. An appeal in

a criminal matter must be filed within 10 days of the entry of

judgment. FED. R. APP. P. 4(b). The date of entry, weekends, and

legal holidays are excluded from the computation. FED. R. APP. P.

26. The judgment of conviction was entered on July 2, 2004, and,

therefore, the appeal noticed on July 16, 2004, was timely filed.

The Government also mistakenly argues that the rules

required Smith to submit a statement of evidence in place of a
No. 04-30792

-3-

missing transcript from the sentencing hearing in this matter. 

The rules require that an appellant order the relevant

transcripts when filing an appeal and Smith did so. See FED.

R. APP. P. 10(c). However, when a transcript is unavailable, as

it was in this case, the rules permit but do not require the

appellant to prepare a statement of the evidence. Id. Smith

submitted the documents needed to show that he was sentenced

before Booker and that he preserved his Booker objections. He is

not required to submit evidence to assist the Government to meet

its burden of showing harmlessness.

Because Smith preserved his Sixth Amendment objections and

the Government has submitted no evidence that the sentencing

error was harmless, Smith’s sentence is hereby vacated and his

case remanded for re-sentencing.

SENTENCE VACATED; CASE REMANDED.