NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0267n.06 Filed: April 8, 2005

No. 04-1306

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE DAMON RICHARD NELSON, ) EASTERN DISTRICT OF MICHIGAN ) Defendant-Appellant. ) ) ) ) )

Before: MARTIN, COOK, and LAY*, Circuit Judges.

PER CURIAM. Damon Nelson appeals his sentence for being a felon in possession of a

firearm and possessing with intent to distribute crack, arguing that the district court erred in

sentencing him under “mandatory” Guidelines, in light of United States v. Booker, 125 S. Ct. 738

(2005). We agree that the district court erred, and presume this prejudiced Nelson. See United

States v. Barnett, 398 F.3d 516, 525-30 (6th Cir. 2005). Because nothing in the record rebuts this

presumption, we vacate Nelson’s sentence and remand for resentencing in light of Booker.

* The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation. No. 03-2406 Bowman v. Knape & Vogt Manufacturing Company

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