                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11055
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NANCY GUTIERREZ SMELOSKY, also known as Nancy Smelosky,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:04-CR-39-ALL-A
                       --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Nancy Gutierrez Smelosky appeals the 46-month sentence

imposed following her conviction for mail fraud, relying on

United States v. Booker, 543 U.S. 220 (2005), and arguing that

her Sixth Amendment rights were violated because her sentence was

enhanced based on facts not alleged in the indictment, proved to

a jury beyond a reasonable doubt, or admitted by her.      Because

Smelosky preserved the issue, we review for harmless error, which

requires the Government to demonstrate beyond a reasonable doubt


     *
       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this opinion should not be published and is not precedent except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. 04-11055
                                -2-

that the district court would have imposed the same sentence if

the Sentencing Guidelines had been advisory.     See United States

v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).

     As the Government concedes, because the district court

enhanced Smelosky’s sentence based on its own factual

determinations, the district court committed error under Booker.

See Pineiro, 410 F.3d at 286.   We also conclude that the error

was not harmless.   The fact that the court sentenced Smelosky to

the maximum sentence within the guidelines range is insufficient

to satisfy the Government’s burden.     See United States v. Woods,

440 F.3d 255, 258-59 (5th Cir. 2006).     Nor are the district

court’s comments at sentencing addressing the issue of an upward

departure sufficient to demonstrate that the Booker error was

harmless.   See Woods, 440 F.3d at 260-61 (rejecting Government’s

argument that Booker error was harmless in the light of the

sentencing court’s narrow rejection of an upward departure).

     The Government has not satisfied its burden of demonstrating

beyond a reasonable doubt that the court would have imposed the

same sentence but for the Booker error.     See Pineiro, 410 F.3d at

286-87.   Accordingly, we vacate Smelosky’s sentence and remand

for resentencing.

     Smelosky’s arguments that a greater sentence at resentencing

would implicate ex post facto and due process concerns are

premature, and we do not address them.     See Amar v. Whitley,
                          No. 04-11055
                               -3-

100 F.3d 22, 23 (5th Cir. 1996); In re Talbott Big Foot, Inc.,

924 F.2d 85, 87 (5th Cir. 1991).

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
