                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       October 18, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                                No. 05-40170
                              Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

VICKY M. MORENO,

                                        Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                          (1:04-CR-623-1)
                       --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges

PER CURIAM:*

     Defendant-Appellant Vicky M. Moreno appeals her conviction and

sentence of 37 months of imprisonment following her guilty-plea

conviction for possession with intent to distribute “approximately

44.52 kilograms” of marijuana.         The district court arrived at

Moreno’s   sentence   after    determining   that   Moreno   possessed       an

equivalent of 64.57 kilograms of marijuana, a fact neither admitted

by Moreno nor found by a jury 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this opinion should not be published and is not precedent except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.
     Moreno challenged the drug quantity found by the court,

arguing    that   such   judicial   fact-finding      violated   Blakely   v.

Washington, 124 S. Ct. 2531 (2004).        Blakely reaffirmed the rule

that “‘[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and proved beyond a reasonable

doubt.’”     Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New

Jersey, 530 U.S. 466 (2000)).

     After Moreno was sentenced, the Supreme Court issued its

decision in United States v. Booker, 125 S. Ct. 738 (2005),

applying    its   holding   in   Blakely   to   the    Federal   Sentencing

Guidelines. As the district court enhanced Moreno’s sentence based

on its factual determination, other than the fact of a prior

conviction, the district court committed legal error under Booker.

     Moreno preserved her argument by raising it in the district

court.     Ordinarily, when a defendant presents a preserved Booker

issue, we vacate the sentence and remand, unless the government can

demonstrate that the error was harmless beyond a reasonable doubt.

United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005).

Here, the government has waived argument with respect to harmless

error.     Accordingly, the government cannot demonstrate harmless

error, and Moreno’s sentence must be vacated and remanded for

resentencing.      In light of this conclusion, we need not reach

Moreno’s claim that her sentence must be vacated because she was



                                     2
sentenced under a mandatory application of the guidelines.                       See

United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir. 2005).

     Moreno   also    argues      that       21   U.S.C.   §   841    is    facially

unconstitutional     in   light    of    Apprendi,     because       the   statute’s

structure treats drug types and quantities as sentencing factors.

Moreno concedes that his argument is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but raises the issue

to preserve it for possible Supreme Court review.

VACATED AND REMANDED.




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