                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                       January 4, 2006
                           FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk

                                 No. 01-60490

                                Summary Calendar


                         United States of America
                                             Plaintiff-Appellee,

                                     versus

                               Mack Arthur Bowens
                                                Defendant-Appellant.



              Appeal from the United States District Court
                For the Northern District of Mississippi


          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Defendant-Appellant        Mack   Arthur   Bowens   was    convicted      of

various drug distribution and possession charges, as well as

obstruction of justice.          We affirmed.1     After the Supreme Court

decided United States v. Booker,2 it vacated Bowens’s sentence and

remanded to this Court for further consideration in light of that




      *
        Pursuant to 5 TH 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should not be published and is not precedent except under the limited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.

      1
       United States v. Bowens, 108 Fed. Appx. 945 (5th Cir. 2004) (per curiam).
      2
       125 S.Ct. 738 (2005).
decision.     We requested and received supplemental letter briefs

addressing the impact of Booker.

      As Bowens preserved his Booker issue at the district court, we

review for harmless error.3           Under harmless error review, the

burden is on the government to point to evidence that would prove,

beyond a reasonable doubt, that the district court would not have

sentenced the defendant differently.4             We have noted that this is

an “arduous burden” and that this Court “will ordinarily vacate and

remand”    when   Booker    error    has   been    preserved.5      Here,    the

government cannot meet that burden. The government cannot point to

anything in the record suggesting that the judge would have imposed

the same sentence upon Bowen absent the mandatory guidelines.6

      Accordingly, we REMAND to the district court to allow the

district court to resentence Bowens if, in its discretion under the

now-advisory Guidelines, it chooses to do so.




      3
       United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).
      4
       United States v. Akpan, 407 F.3d 360, 367 (5th Cir. 2005).
      5
       United States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir. 2005) (quoting
Mares, 402 F.3d at 520 n.9).
      6
       Cf. United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir. 2005)
(finding preserved Booker error harmless when the sentencing judge stated that
should the Supreme Court hold the federal guidelines unconstitutional, the court
would impose the same sentence); United States v. Nelson, 145 Fed. Appx. 82, 83
(5th Cir. 2005) (finding preserved Booker error harmless when the sentencing
judge expressed disappointment that there was not a greater statutory maximum and
indicated that a sentence above the maximum would have been appropriate).

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