* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4

. United States Court of Appeals

Fifth Circuit



## FILED

December 15, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60709

Summary Calendar

UNTIED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DALE ROY CREEL, also known as Shorty,

DefendantAppellant.

--------------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:03-CR-80-GRo

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

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM: *

Following a jury trial, Dale Roy Creel was convicted of one count of conspi racy to

manufacture more than 500 grams of methamph et amine, t wo counts of discharging a firearm in

relation to a drug offense, and one count of brandishing a firearm in relation to a drug offense. The

district court sentenced Creel to serve life in prison on the methamphetamine offense, ten years on-2-

each discharge offense, and seven years on the brandishing offense. He was also sentenced to serve

a five-year term of supervised release. Creel now appeals his convictions and sentences.

Creel argues that the district court abused its discretion in denying his request for new

appointed counsel. Creel has not shown that his disagreements with counsel constituted good cause

for him to receive a new attorney. See Morris v. Slappy

, 461 U.S. 1, 13-14 (1983); United States

v. Young , 482 F.2d 993, 995 5th Cir. 1973). Consequently, Creel likewise has not shown that the

district court erred in denying his request for substitute appointed counsel.

Creel c o nt ends t hat the district court’s instructions to the jury constructively amended the

indictment as to the firearms charges. He concomitantly argues that his convictions on these charges

should be overturned. Creel has not shown that these convictions were based on grounds that were

permissible under the statute but not charged in the indictment. S ee United States v. Daniels

, 252

F.3d 411, 413 (5th

Cir. 2001). He thus has not shown that his indictment was constructively

amended by the jury instructions. Because Creel has shown no error in connection with his

convictions, those convictions are AFFIRMED.

Creel argues that his sentence must be vacated in light of United States v. Booker

, 125 S. Ct.

738 (2005). W

hen, as here, a Booker claim is preserved, we will ordinarily vacate and remand unless

the Government can show beyond a reasonable doubt that the error was harmless. S ee United States

v. Pineiro , 410 F.3d 282, 285 (5th Cir. 2005). T he district court’s imposition of a sentence based

on facts exceeding those contained in the judgment of conviction was erroneous. S ee id. Further,

the Government concedes that the error was not harmless, and there is nothi ng in the record to

indicate that the district court would have imposed the same sentences under an advisory guidelines-3-

scheme. S ee id. Accordingly, Creel’s sentences are VACATED and this matter is REMANDED for

resentencing.