* 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this opinion should not be published and is not precedent except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 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41053

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LIZA LAWONNA BESHIRS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 3:03-CR-8-2 

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

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Liza Lawonna Beshirs appeals the sentence imposed following

her guilty-plea conviction for conspiracy to manufacture,

distribute, or possess with intent to manufacture, distribute, or

dispense methamphetamine. She argues that the district court

erred in determining that there was a sufficient factual basis to

support application of a two-level adjustment for possession of a

dangerous weapon under U.S.S.G. § 2D1.1(b)(1). She also contends

that the district court erred pursuant to United States v.
No. 04-41053

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Booker, 125 S. Ct. 738 (2005), by applying this adjustment, and a

six-level adjustment for creating a substantial risk of harm to

the life of a minor. She contends that the sentencing guidelines

are unconstitutional and that enhancing her sentence based on

facts to which she did not admit and that were not found by the

trier of fact beyond a reasonable doubt violates her Sixth

Amendment rights. 

After Beshirs filed her notice of appeal, the district court

granted the Government’s motion for a reduction of sentence

pursuant to FED. R. CRIM. P. 35(b) and entered an amended judgment

sentencing Beshirs to 81 months of imprisonment. The Government

originally filed a motion to dismiss this appeal as moot but has

since moved to strike this motion. The motion to strike is

construed as a motion to withdraw the motion to dismiss and is

granted. 

As both parties concede, the district court lacked

jurisdiction to grant the FED. R. CRIM. P. 35(b) motion once

Beshirs’s notice of appeal was filed. See United States v.

Hayes, 589 F.2d 811, 827 n.8 (5th Cir. 1979). Accordingly, the

district court’s amended judgment is void, and the original

judgment remains in effect. The proper method for preserving a

direct appeal and a post-judgment motion that is not in aid of

the appeal is to request a stay from the appellate court when the 
No. 04-41053

-3-

district court indicates that it is inclined to grant the postjudgment motion. See Winchester v. U.S. Attorney for the S.

Dist. of Texas, 68 F.3d 947, 949 (5th Cir. 1995). 

We review the district court’s interpretation and

application of the guidelines de novo, and its factual findings

for clear error. See United States v. Villanueva, F.3d ,

No. 03-20812, 2005 WL 958221 at *7-*8 (5th Cir. Apr. 27, 2005). 

An adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) is appropriate

if a weapon is present “unless it is clearly improbable that the

weapon was connected with the offense.” U.S.S.G. § 2D1.1,

comment (n.3). Weapon possession is established if the

Government proves by a preponderance of the evidence “that a

temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” United States v.

Hooten, 942 F.2d 878, 882 (5th Cir. 1991). Regardless whether

the semi-automatic rifle could have been used for hunting, a

supposition which Beshirs offers no evidence to support, the

firearm was found in the open, and it is not clearly improbable

that it was connected to Beshirs’s offense. See U.S.S.G.

§ 2D1.1, comment. (n.3); United States v. Hewin, 877 F.2d 3, 5

(5th Cir. 1989). Accordingly, the district court did not err in

imposing the two-level enhancement for possession of a dangerous

weapon in connection with a drug-trafficking offense. 

In Booker, the Supreme Court held that "[a]ny fact (other

than a prior conviction) which is necessary to support a sentence
No. 04-41053

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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." 

Booker, 125 S. Ct. at 756. Booker also struck down 18 U.S.C.

§ 3553(b)(1) and rendered the guidelines advisory, rather than

mandatory. Id. at 764-65. Pursuant to Booker, the increases in

Beshirs’s offense level under U.S.S.G. § 2D1.1 exceed the maximum

sentence authorized by her guilty plea. 

Where, as here, a defendant has preserved a Booker challenge

in the district court, “we will ordinarily vacate the sentence

and remand, unless we can say the error is harmless under Rule

52(a) of the Federal Rules of Criminal Procedure.” United States

v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005), petition for

cert. filed, No. 04-9517 (U.S. Mar. 31, 2005). As the Government

concedes, it has not met its burden of demonstrating beyond a

reasonable doubt that this error did not contribute to the

sentence that Beshirs received. See United States v. Akpan,

 F.3d , No. 03-20875, 2005 WL 852416 at *12 (5th Cir.

Apr. 14, 2005). Accordingly, we vacate Beshirs’s sentence and

remand for resentencing in accordance with Booker. 

MOTION TO WITHDRAW THE MOTION TO DISMISS GRANTED; AMENDED

JUDGMENT VOIDED; SENTENCE VACATED AND REMANDED.