                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       August 22, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                  No. 03-31216
                                Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

BRYAN KEITH MCCALL,
also know as Sealed Defendant #2,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                 for the Middle District of Louisiana
                         USDC No. 03-CR-15-B-2
                          --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Bryan     Keith   McCall    appeals   his   sentence   for   aiding     and

abetting the attempted bribery of a public official. McCall argues

that his 86-month sentence must be vacated in light of United

States v. Booker, 125 S. Ct. 738 (2005) because it is based on

contested facts not established by McCall’s guilty plea.

     In Booker, the Supreme Court held 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

     *
       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this opinion should not be published and is not precedent except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.
                                  No. 03-31216
                                       -2-

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”            Booker, 125 S. Ct. at

756.    Booker also struck down 18 U.S.C. § 3553(b)(1) and thus

rendered the Sentencing Guidelines advisory rather than mandatory.

Id. at 764-65.

       The   district   court     found    that   the   purpose   of   McCall’s

attempted bribery was to obstruct justice in a drug-trafficking

prosecution and calculated his sentence using an estimated quantity

of drugs reasonably attributable to the drug conspiracy.                 McCall

objected that his sentence should be computed using the Sentencing

Guideline for simple bribery because there was “no evidence” that

he was involved in the drug conspiracy. McCall’s 86-month sentence

exceeded the maximum sentence that could have been imposed based

solely on     his   plea   and,   thus,    constituted    a   Sixth    Amendment

violation under Booker.         See Booker, 125 S. Ct. at 769.

       When, as here, a defendant has preserved a Booker Sixth

Amendment error in the district court, we will ordinarily vacate

the sentence and remand, unless we determine that the error is

harmless under Fed. R. Crim. P. 52(a).            United States v. Akpan, 407

F.3d 360, 376 (5th Cir. 2005).            Under Akpan, the Government must

establish beyond a reasonable doubt that the Booker error did not

contribute to McCall’s sentence.           Akpan, 407 F.3d at 377.       Because

we conclude that the Government has not met its burden of showing

that McCall’s 86-month sentence is harmless under Booker, we vacate
                             No. 03-31216
                                  -3-

McCall’s sentence and remand the case to the district court for

resentencing.

     VACATED AND REMANDED.
