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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TOMMY JAMES LEE HORNE,

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 DAVIS, SMITH, and DENNIS,

Circuit Judges.

PER CURIAM:

*

This court affirmed Tommy Horne’s conviction and sentence. United States v. Horne,

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

United States v. Booker, 125 S. Ct. 738

(2005). Horne v. United States, 125 S. Ct.

1749 (2005). We requested and received

supplemental letter briefs addressing the impact of Booker.

1

The 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

wasinsufficient proof regarding the prior convictions;(2) the failure to submit the qualifying

armed career criminal 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 objections 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 candidly acknowledges that

“in view of Horne’s Apprendi-based objection

to the [presentence report’s] calculation ofimprisonment using his three prior convictions

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

light of . . . Booker” (citing United 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 positsthat the district

court’s “findings went beyond those admitted

by the defendant and were objected to at sentencing.” In Mares, we directed that “if . . .

the Sixth Amendment issue presented inBooker . . . is preserved in the 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

Rules of Criminal Procedure.” Mares, 402

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

that the record does not support, beyond a

reasonable doubt, that the district court would

not have imposed a lesser sentence under an

advisory sentencing regime. Under Mares,

therefore, Horne is entitled to resentencing.

In his pro se supplemental letter brief,

Horne, in addition to addressing 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, Shepard

* 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.

1 Horne was represented 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

addressesthe Armed Career CriminalAct, and

the district court should consider it. We

express no view on whether Shepard affords

Horne any relief; that isfor the district court to

decide.

The judgment of conviction is AFFIRMED

for the reasons stated in our initial opinion.

For the reasons set forth in this opinion, the

judgment of sentence is VACATED and

REMANDED for resentencing. We express

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

sentence, is “reasonable” as that concept is

discussed in Booker, 125 S. Ct. at 765-68, and

its progeny.