                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                   June 20, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                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
    ______________________________
           ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS,
  Circuit Judges.
                                                                Horne raised these issues on appeal, but we
PER CURIAM:*                                                held them foreclosed by Apprendi and United
                                                            States v. Stone, 306 F.3d 241 (5th Cir. 2002).
   This court affirmed Tommy Horne’s con-                   The government candidly acknowledges that
viction and sentence. United States v. Horne,               “in view of Horne’s Apprendi-based objection
117 Fed. Appx. 327 (5th Cir. 2004) (per cur-                to the [presentence report’s] calculation of im-
iam). The Supreme Court vacated and re-                     prisonment using his three prior convictions
manded for further consideration in light of                and Armed Career Criminal status, it now ap-
United States v. Booker, 125 S. Ct. 738                     pears that [Horne’s argument] should be re-
(2005). Horne v. United States, 125 S. Ct.                  viewed under the harmless error standard in
1749 (2005). We requested and received                      light of . . . Booker” (citing United States v.
supplemental letter briefs addressing the im-               Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005),
pact of Booker.1                                            petition for cert. filed (Mar. 31, 2005) (No.
                                                            04-9517), and United States v. Rodriguez, 398
   The government confesses error and the                   F.3d 1291, 1296-97 (11th Cir. 2005)).
need to remand for resentencing based on the
fact that the district court made a finding that               The government thus posits that the district
Horne was an armed career criminal under                    court’s “findings went beyond those admitted
U.S.S.G. § 4B1.4. Horne filed objections to                 by the defendant and were objected to at sen-
the presentence report, alleging (1) that there             tencing.” In Mares, we directed that “if . . .
was insufficient proof regarding the prior con-             the Sixth Amendment issue presented in Book-
victions; (2) the failure to submit the qualifying          er . . . is preserved in the district court by an
armed career criminal convictions to the jury               objection, we will ordinarily vacate the sen-
as a violation of Apprendi v. New Jersey, 530               tence and remand, unless we can say the error
U.S. 466 (2000); and (3) the lack of sufficient             is harmless under Rule 52(a) of the Federal
notice of the prior convictions. The district               Rules of Criminal Procedure.” Mares, 402
court denied the objections and made the                    F.3d at 520 n.9. The government recognizes
finding that Horne is an armed career criminal.             that the record does not support, beyond a
                                                            reasonable doubt, that the district court would
                                                            not have imposed a lesser sentence under an
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-         advisory sentencing regime. Under Mares,
termined that this opinion should not be published          therefore, Horne is entitled to resentencing.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.                    In his pro se supplemental letter brief,
   1
                                                            Horne, in addition to addressing the Booker
      Horne was represented by counsel until the
                                                            issues we have discussed, requests that on re-
opinion was issued, whereupon counsel obtained
                                                            mand the district court take account of the in-
leave of this court to withdraw as counsel. Horne
filed his certiorari petition pro se and continues to
                                                            tervening decision in Shepard v. United States,
represent himself at this time.                             125 S. Ct. 1254 (2005). Indeed, Shepard

                                                        2
addresses the Armed Career Criminal Act, and
the district court 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 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 re-
ceived, 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.




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