                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                         April 3, 2006
                           FOR THE FIFTH CIRCUIT
                           _____________________                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 02-20615
                           _____________________

UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee

                                     versus

ANTHONY ROBINSON, also known as Tony
Marcel Robinson,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. H-00-CR-286-1
_________________________________________________________________

                           ON REMAND FROM
               THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, JOLLY and PRADO, Circuit Judges.

PER CURIAM:1

     This    court   affirmed    Anthony       Robinson’s    conviction       and

sentence.    United States v. Ingram, 96 Fed. Appx. 946 (2004).               The

Supreme Court vacated and remanded for further consideration in the

light of United States v. Booker, 125 S.Ct. 738 (2005).                 Robinson

v. United States, 125 S. Ct. 1093 (2005).                   We requested and

received    supplemental    letter    briefs    addressing    the    impact     of

Booker.


     1
      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this opinion should not be published and is not precedent except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.
     Robinson was convicted of marijuana offenses and conspiracy to

launder money.     His sentence was enhanced based on the quantity of

drugs   involved   in   the   offenses,   his    leadership    role   in   the

conspiracy, and obstruction of justice.

     Robinson filed written objections to the PSR, contending that

his base offense level had been based on drug amounts that had not

been proven beyond a reasonable doubt.           He also objected to the

enhancements   for   his   leadership     role   and   for   obstruction    of

justice, on the ground that there was insufficient evidence to

support those enhancements.        In addition, he objected that the

statutes of conviction, 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B), are

unconstitutional as a result of Apprendi v. New Jersey, 530 U.S.

466 (2000).

     At the sentencing hearing, Robinson’s counsel stated, in

response to the court’s comment about consideration of evidence as

to an acquitted count:

           I want to be clear for the record, Your Honor.
           I think we stated this in our brief. I expect
           that the Supreme Court, given certain things
           that were said in some of the various Apprendi
           opinions, may change that. I want to be clear
           that we’re asking for it to apply reasonable
           doubt standard with respect to any quantity
           issues.   I know what the law in the Fifth
           Circuit is right now. We are hoping that will
           change at some point.

Robinson’s counsel also objected to the enhancements for leadership

role and obstruction of justice, and argued that the Government had

the burden of proving the applicability of those enhancements


                                    2
beyond a reasonable doubt rather than by a preponderance of the

evidence.

     The district court found that the enhancements for leadership

role and obstruction of justice applied, but lowered the drug

quantity determined by the PSR.             Pursuant to Robinson’s request,

the district court found that Robinson’s leadership role had been

established   beyond     a    reasonable     doubt.       The   district   court

determined the guideline imprisonment range to be 235 to 293

months, and sentenced Robinson to 235 months in prison, commenting

that “I do think this is a very stiff range.”

     In his supplemental brief, Robinson argues that the district

court erred when it applied the Sentencing Guidelines as mandatory

rather than advisory and sentenced Robinson above the sentencing

range   supported   by   the    jury   verdict     and    Robinson’s   criminal

history.    He contends that he properly preserved this issue by

challenging   the   sufficiency        of    the   evidence     supporting    the

enhancements, and by arguing that the enhancements had to be proved

beyond a    reasonable       doubt.    Robinson    also    contends    that   the

district court plainly erred by failing to consider the factors set

forth in 18 U.S.C. § 3553(a).

     The Government counters that Robinson’s objections in the

district court are insufficient to preserve a Booker claim, because

although Robinson objected that the statutes of conviction are

unconstitutional after Apprendi because drug type and quantity are

elements of the offense, he did not object that the Guidelines are

                                        3
unconstitutional under Apprendi’s reasoning or that the Sixth

Amendment   and/or   Apprendi   require   that   enhancements   for   drug

quantity, leadership role, and obstruction of justice be proved to

a jury. Furthermore, the Government asserts that although Robinson

objected to the standard of proof at sentencing regarding drug

quantity and the leadership role enhancement, he wanted the court

-- not the jury -- to determine those increases beyond a reasonable

doubt rather than by a preponderance of the evidence.

     To preserve Booker error, a defendant need not mention the

Sixth Amendment, Apprendi, or Blakely v. Washington, 542 U.S. 296

(2004).     However, the defendant must “adequately apprise[] the

court that he was raising a constitutional error.”        United States

v. Olis, 429 F.3d 540, 544 (5th Cir. 2005).        The argument must be

couched in terms that the facts used to enhance the sentence were

not proved to a jury beyond a reasonable doubt.                 Under our

precedent, Robinson’s objections, although less than pellucid,

adequately apprised the district court that he was raising a

constitutional error under Apprendi.       See United States v. Akpan,

407 F.3d 360, 376, 377 (5th Cir. 2005) (objection to calculation of

range of financial loss on ground that figure had not been proven

at trial, and objection that district court should confine its

determination of loss to amount alleged in indictment “adequately

apprised the district court that [defendant] was raising a Sixth

Amendment objection to the loss calculation because the government

did not prove to the jury beyond a reasonable doubt that the loss

                                   4
was between five to ten million dollars”); see also United States

v. Olis, 429 F.3d 540, 544 (5th Cir. 2005) (defendant preserved

Booker error when objecting to district court’s loss calculation by

alerting “the court to cases that acknowledged the potential for a

constitutional violation when sentencing facts are not found by at

least clear and convincing evidence”); United States v. Pineiro,

410 F.3d 282, 283-85 (5th Cir. 2005) (defendant’s Apprendi-based

objection to PSR’s drug-quantity calculations was sufficient to

preserve his Booker claim).

     When, as here, a defendant preserves Booker error, “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.”     United States v. Mares, 402 F.3d 511, 520 n.9 (5th

Cir.), cert. denied, 126 S.Ct. 43 (2005). The Government bears the

“burden   of    demonstrating        that      the    error     was   harmless       by

demonstrating       beyond   a    reasonable         doubt     that   the    federal

constitutional      error    of    which       [Robinson]     complains     did   not

contribute to the sentence that he received.”                    United States v.

Pennell, 407 F.3d 360, 377 (5th Cir. 2005).                  The Government argues

that any error is harmless, because the sentence that Robinson

received is reasonable.          The Government has not met its burden of

proof -- it has not pointed to any evidence in the record or

statements     by   the   district    court      that   would     prove     beyond   a

reasonable doubt that the district court would have imposed the

same sentence had it acted under an advisory Guidelines regime.

                                           5
     For the foregoing reasons, we VACATE Robinson’s sentence and

REMAND the case to the district court for resentencing.

                                            VACATED and REMANDED.




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