United States Court of Appeals

Fifth Circuit



## FILED

June 20, 2005

Charles R. Fulbruge III
Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-40215

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### T OMMY 

### J AMES 

### L

EE 

### H ORNE



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Eastern District of Texas



### m 1:03-CR-81-ALL

______________________________2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before D AVIS , S MITH , and D ENNIS

, Circuit Judges.

P ER C URIAM : *

This court affirmed Tommy Horne’s co n

viction and sentence. U

nited States v. Horne

, 117 Fed. Appx. 327 (5th Cir. 2004) (per curiam). The Supreme Court vacated and remanded for furth e r consideration in light of

United States v. Booker

, 125 S . Ct. 738

(2005). H

orne v. United States

, 12 5 S. Ct.

1749 (2005). We requested and received

supplemental letter briefs addressing the impact of Booker

. 1

T he 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 convictions; (2) the failure to submit the qualifying

armed career cri minal 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 o bjections 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 can didly acknowledges that

“in view of Horne’s Apprendi-based objection

to the [presentence report’s] calculation of imprisonment using his three prior convic t ions

and Armed Career Criminal status, it now appears that [Horne’s argument] should be reviewed und e r the harmless error standard in

light of

. . . Booker

” (c iting U

nited 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 sent encing.” In M

ares

, we directed that “ if . . .

the Sixth Amendment issue presented in Booker

. . . is preserved in th e district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error

is harmless under Rule 52(a) of the Federal

Rule s o f Criminal Procedure.” M ares

, 402

F.3d at 520 n.9. The government recognizes

that the record does not support, bey ond a

reasonable doubt, that the district court would

not have imposed a lesser sen tence under an

advisory sen t encing regime. Under M ares

, therefore, Horne is entitled to resentencing.

In his pro se supplemental letter brief,

Horne, in addition to a d dressing the Booker

issues we have discussed, requests that on remand the district court take account of the intervening decision in Shepard v. United States

, 125 S. Ct. 1254 (2005). Indeed, S hepard * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

andis not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 Horne was repr e sented 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.3

addresses the Armed Career Criminal Act, and

the district co urt 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 init ial opinion.

For the reasons set forth in this opinion, the

judgment of sentence is VACATED and

RE MANDED for resentencing. We express

no view as to whether the sentence Horne received, or for that matter any other particular

sentence, is “reasonable” as th at concept i s

discussed in Booker

, 125 S. Ct. at 765-68, and

its progeny.