                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                October 20, 2005
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                   Clerk
                             No. 03-10836
                           Summary Calendar
                       ))))))))))))))))))))))))))

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

versus

MENG TUAN WANG,

                                                    Defendant-Appellant,




             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 4:03-CR-21-2-A


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

I.   Background

     Wang pleaded guilty to conspiracy to possess with the intent

to distribute approximately 1,000 doses of MDMA, and was sentenced

to one-hundred months of imprisonment and five years of supervised

release. This Court affirmed Wang’s judgment of conviction. United

States v. Wang, 89 F. App’x. 470 (5th Cir. 2004).      The Supreme Court



     *
      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this opinion should not be published and is not precedent except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.
vacated this court’s judgment and remanded the case for further

consideration in light of United States v. Booker, 125 S.Ct. 738

(2005). Wang v. United States, 125 S.Ct. 1614 (2005). We requested

and received supplemental letter briefs addressing the impact of

Booker, 125 S.Ct. 738, and United States v. Mares, 402 F.3d 511 (5th

Cir. 2005).

     In Booker, the Supreme Court emphasized 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 the jury beyond a reasonable doubt.”    Booker, 125 S.Ct.

at 756.   Wang argued that the district court violated his Sixth

Amendment rights as outlined in Booker by enhancing his sentence

based on an additional quantity of MDMA that was not alleged in the

indictment, but attributed to his relevant conduct.    Wang did not

concede liability for that additional quantity of MDMA in his guilty

plea. More importantly, Wang objected to the second addendum to the

Presentence Investigation Report (“PSR”) on the ground that “the

relevant conduct alleged therein must be proven by clear and

convincing evidence” because inclusion of that relevant conduct

would have an “extremely disproportionate effect” upon his sentence.

In response, the Probation Officer asserted that a defendant must

show factual findings in the PSR implausible in light of the record

as a whole.   Using the preponderance of the evidence standard, the



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district court specifically found that Wang was responsible for the

additional amount of MDMA, which increased his total offense level

from 26 to 30.    Wang challenges this offense level enhancement.

      Ultimately, this case turns on whether Wang properly preserved

his Booker argument in the district court.           If the error was not

preserved, we review the appellant’s sentence for plain error.           See

Mares, 402 F.3d 511.      If the error was preserved, we review his

sentence for harmless error.      Mares, 402 F.3d 511, 520 n.9 (“...if

either the Sixth Amendment issue presented in Booker or the issue

presented in Fanfan is preserved in the district court by an

objection, 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.”); see also United States v. Olano, 113

S.Ct. 1770, 1778(1993).

II.   Analysis

                          Preservation of Error

      Wang contends that his objection regarding the applicable

standard   upon   which   to   apply    the   guideline   enhancements   was

sufficient to preserve error.          The Government, on the other hand,

argues that error was not preserved because defendants routinely

argue for a higher standard of proof without also making a case for

a jury-determination beyond a reasonable doubt.

      Wang did not, however, fail to preserve his Booker challenge

to the district court’s enhancement of his sentence.          An objection



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preserves error if it “was specific enough to allow the trial court

to take testimony, receive argument, or otherwise explore the issue

raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir 1997).

The major rationale behind requiring litigants to make timely

objections in an effort to avoid forfeiture of rights is “founded

upon considerations of fairness to the court and to the parties and

of the public interest in bringing litigation to an end after fair

opportunity has been afforded to present all issues of law and

fact.”      United States v. Ocana, 204 F.3d 585, 589 (5th Cir.

2000)(quoting United States v. Calverley, 37 F.3d 160, 162 (5th Cir.

1994)).        Hence,   to   preserve     error,    the   objection   must     be

sufficiently specific to alert the district court as to the nature

of the objection and allow the court to correct the perceived error

at that level.     See Ocana, 204 F.3d at 589.

     Wang’s objection that the relevant conduct alleged by the

Probation Officer must be proven by clear and convincing evidence,

rather than the preponderance of the evidence, was tantamount to

stating that the district court’s standard violated his Sixth

Amendment rights.       Thus, his objection was sufficient to preserve

error.    Wang’s written objection not only notified the court of his

disagreement with the proposed standard, but also gave the district

court    the   opportunity     to   address   the   appropriateness    of     the

standard.       Furthermore,    the   objection     elicited   a   response    in

opposition from the Probation Officer.          Finally, the district court


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specifically applied the preponderance of the evidence standard.

Wang’s objections thus adequately apprised the district court that

he was raising a Sixth Amendment objection to the appropriateness

of the proposed standard for guideline enhancements.

                                Harmless Error

     There is no question that the district court committed Sixth

Amendment Booker error by enhancing Wang’s sentence pursuant to its

finding that he was responsible for a greater quantity of drugs than

that which was alleged in his indictment or conceded in his guilty

plea.   See Booker, 125 S.Ct. at 738.            Because we hold that Wang

preserved his Booker challenge to the district court’s enhancement

of his sentence, we review his sentence for harmless error.             Olano,

113 S.Ct. 1770, 1778.      See also Mares, 402 F.3d at 520 n.9.

     Harmless error is “[a]ny defect, irregularity, or variance that

does not affect [the] substantial rights" of the defendant. FED. R.

CRIM. P. 52(a).     An error afflicts the defendant’s substantial

rights, and thus is prejudicial, “if it affects the outcome of the

district court proceedings.”        United States v. Pineiro, 410 F.3d

282, 285 (5th Cir. 2005)(citing Olano, 113 S.Ct. 1770(1993)).

Hence, to show harmlessness, the government bears the burden of

demonstrating     beyond    a    reasonable      doubt    that   the   federal

constitutional    error    of   which     a   defendant   complains    did   not

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

Akpan, 407 F.3d 360, 377 (5th Cir. 2005).

                                        -5-
     The government cannot meet this arduous burden here.            It can

point to no record evidence that would prove beyond a reasonable

doubt   that   the   district   court   would   not   have   sentenced   Wang

differently had it acted under an advisory Guidelines regime. There

is no indication from the record as to what sentence the district

court would have imposed if the Federal Sentencing Guidelines were

advisory rather than mandatory.           Therefore, based on the record

before us, we cannot conclude that the mandatory nature of the

Guidelines at the time of Wang’s sentence did not contribute to the

sentence that he received.      Accordingly, we VACATE Wang’s sentence

and REMAND for resentencing.

                                                      VACATED and REMANDED.




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