UNITED STATES of America, Plaintiff-Appellee, v. John Wayne CLEAVER, Defendant-Appellant, 203 F. App'x 571

PER CURIAM: John Wayne Cleaver appeals his guilty-plea conviction and sentence for conspiracy to possess with intent to distribute or dispense 3, 4-methylenedioxy-methamphet-amine (“MDMA” or “ecstasy”), cocaine, methamphetamine and/or gamma/hydroxy-butyrate. See 21 U.S.C. § 846. Cleaver claims the court erred, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in assessing sentencing increases for relevant conduct based upon uncorroborated statements and for his leadership role in the offense.

Cleaver’s objections to the Presentence Investigation Report and at sentencing sufficiently apprised the court that he was making a Sixth Amendment objection to being sentenced based on facts not found by a jury. See United States v. Akpan, 407 F.3d 360, 376 (5th Cir.2005). The increases violated Cleaver’s Sixth Amendment right to a trial by jury, and the Government has not met its burden of demonstrating the error was harmless beyond a reasonable doubt. See United States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir.2005). SENTENCE VACATED AND REMANDED FOR RESENTENCING. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.