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MAY 6 2005
PATRICK FISHER
Clerk
No. 02-5211
(D. Ct. No. 00-CR-126-001-C)
(N.D. Okla.)
constitutional Booker error). The Supreme Court has held that, in regard to sentencing
errors, harmlessness consists of determining, based on the record as a whole, whether
the error . . . affect[ed] the district courts selection of the sentence imposed. Williams
v. United States, 503 U.S. 193, 203 (1992) (citing Fed. R. Crim. P. 52(a)). In harmless
error cases, the Government bears the burden of demonstrating that the sentence was not
affected. Id. Because this error is of constitutional dimension, the Government must
establish this lack of effect beyond a reasonable doubt. See Chapman v. California, 386
U.S. 18, 24 (1967).
The Government does not meet this burden. The Governments sole argument is
that the record contains evidence to support the application of the enhancing Guidelines
by a preponderance-of-the-evidence standard. In this case, such a showing is insufficient
because the Government does not establish that the District Court, finding facts by a
preponderance of the evidence under a discretionary sentencing scheme, would have
imposed a life sentence. The record is silent on this score. As such, we cannot conclude
beyond a reasonable doubt that this error is harmless. See United States v.
Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005) (on harmless-error review,
remanding a non-constitutional Booker error case in the face of a silent record).
Therefore, we REINSTATE all non-sentencing portions of our previous opinion,
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VACATE Mr. Macks sentence, and REMAND for resentencing consistent with Booker.
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