                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 21, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-40160
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

WILLIAM HENRY HARRISON, also known as Wayne Green,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                          USDC No. 6:99-CR-2-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY and HIGGINBOTHAM, Circuit Judges.*

PER CURIAM:**

     This court affirmed the conviction and sentence of William

Henry Harrison.     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker,

543 U.S. 220 (2005).     We requested and received supplemental

briefs addressing the impact of Booker.



     *
       This order is being entered by a quorum of this court
pursuant to 28 U.S.C. § 46(d).
     **
       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this opinion should not be published and is not precedent except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.
                           No. 03-40160
                                -2-

     In the district court and on appeal, Harrison challenged on

Sixth Amendment grounds the district court’s enhancement of his

sentence.   In his supplemental brief, Harrison challenges his

sentences and his convictions on both counts on Sixth Amendment

grounds in the light of Blakely v. Washington, 542 U.S. 296

(2004), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Booker.

     In Booker, the Supreme Court applied the Sixth Amendment

holdings in Blakely and Apprendi to the Federal Sentencing

Guidelines.   Specifically, the Court held that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”

Booker, 543 U.S. at 244.   The Court also excised 18 U.S.C.

§ 3553(b)(1) of the Sentencing Reform Act, rendering the Federal

Sentencing Guidelines effectively advisory.   Id. at 258-60.

     Because the Supreme Court vacated and remanded this case for

further consideration in light of Booker, Harrison’s arguments

that he was deprived of a fair trial because the Government

introduced perjured testimony and withheld favorable evidence are

not “within the purview of the mandate of the Supreme Court.”

See Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967).

To the extent that Harrison’s supplemental brief challenges the

sufficiency of the indictment, the sufficiency of the evidence,
                             No. 03-40160
                                  -3-

and the jury’s verdict, these issues too are beyond the scope of

the Booker remand.     See id.

      Harrison preserved his Sixth Amendment challenge in the

district court.    See United States v. Olis, 429 F.3d 540, 544

(5th Cir. 2005).     As the Government concedes, the district court

committed error under Booker by enhancing Harrison’s base offense

level by two levels for obstruction of justice under U.S.S.G.

§ 3C1.1 based on the district court’s factual findings.     The

Government concedes that it cannot show that the Booker error was

harmless.    See United States v. Pineiro, 410 F.3d 282, 286 (5th

Cir. 2005).    Where, as here, a Booker error has been preserved in

the district court and this court cannot say that the error is

harmless, this court “will ordinarily vacate the sentence and

remand.”    Id. at 284 (internal quotation marks and citation

omitted).

      Harrison argues that resentencing violates the Double

Jeopardy Clause.   The constitutional protection against double

jeopardy “prohibits resentencing only when a defendant has

developed a legitimate expectation of finality in his original

sentence.”    United States v. Benbrook, 119 F.3d 338, 340 (5th

Cir. 1997).   In challenging his sentence, Harrison has “opened

the door for the district court to revisit the entire sentence.”

Id.

      Harrison argues that the remedial opinion in Booker has no

application in his case.    However, we “‘must apply . . . both the
                             No. 03-40160
                                  -4-

Sixth Amendment holding and [the Court’s] remedial interpretation

of the Sentencing Act-to all cases on direct review.’”     United

States v. Scroggins, 411 F.3d 572, 576-77 (5th Cir. 2005)(quoting

Booker, 543 U.S. at 268) (emphasis added).

     Because the enhancement for obstruction of justice is Booker

error requiring remand for resentencing, we do not address

Harrison’s suggestion that his sentence was enhanced based on

drug quantity in violation of Booker, but we “leave to the

discretion of the district court, whether in its discretion, it

will impose the identical sentence with the identical departures

or enhancements, or both.”     United States v. Akpan, 407 F.3d 360,

377 n.62 (5th Cir. 2005).

     We VACATE Harrison’s sentences on both counts and REMAND in

accordance with Booker.     We REINSTATE our judgment affirming

Harrison’s convictions.
