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this opinion should not be published and is not precedent except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

August 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41508

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERRY W. GORE,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:03-CR-232-2

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

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Jerry W. Gore appeals his sentence following his guilty-plea

to conspiracy to possess with intent to distribute 500 grams or

more of methamphetamine. The district court calculated Gore’s

base offense level based on relevant conduct involving more

potent methamphetamine “ice” rather ordinary methamphetamine and

on Gore’s role as a leader of the conspiracy. The court

overruled Gore’s objection that two prior convictions counted in

his criminal history were more than 10 years old when Gore joined
No. 04-41508

-2-

the conspiracy. Gore argues that the district court’s factual

findings violated the Sixth Amendment and United States v.

Booker, 125 S. Ct. 738 (2005), because Gore did not admit the

facts used to increase his sentence.

Booker, 125 S. Ct. at 756, 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 of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Booker

also rendered the federal sentencing guidelines advisory only. 

Id. at 756-57, 764-65.

Gore expressly objected in the district court based on the

Sixth Amendment and Blakely v. Washington, 124 S. Ct. 2531

(2004), arguing that he should be sentenced based only on the

facts to which he had pleaded or admitted. Gore thus adequately

preserved his claim of a Sixth Amendment violation. See United

States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005). 

Gore’s 327-month sentence exceeded the maximum sentence that

could have been imposed based solely on his plea and constituted

a Sixth Amendment violation under Booker. See Booker, 125 S. Ct.

at 769. Because Gore preserved the error, we will vacate the

sentence and remand, unless we can say that the error is harmless

under Fed. R. Crim. P. 52(a). United States v. Mares, 402 F.3d

511, 520 n.9 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517). Under this standard, the Government bears
No. 04-41508

-3-

the burden of demonstrating beyond a reasonable doubt that the

constitutional error did not contribute to the defendant’s

sentence. Akpan, 407 F.3d at 377. The Government concedes that

it cannot bear its burden and points to no record evidence that

would prove beyond a reasonable doubt that the district court

would not have sentenced Gore differently had it acted under

advisory guidelines. Accordingly, Gore’s sentence must be

vacated and remanded for resentencing.

Because we vacate Gore’s entire sentence, we do not address

reach of his specific claims of sentencing errors but leave to

the district court’s discretion the sentence it will impose and

factors upon which it will rely. See Akpan, 407 F.3d at 377

n.62.

Gore does not challenge his conviction; it is affirmed. See

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (issues not

briefed are waived on appeal). 

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.