                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                    December 9, 2005

                                                                Charles R. Fulbruge III
                                   No. 04-41591                         Clerk
                                 Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus

LEROY CONNER, JR.,

                                                Defendant-Appellant.




             Appeal from the United States District Court
                 For the Eastern District of Texas
                        USDC No. 1:04-CR-32-1


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Leroy Conner, Jr. appeals the 33-month sentence of

imprisonment imposed following his guilty plea to counterfeit

securities charges.       He asserts that his sentence violates United

States v. Booker.1

     Because Conner’s sentence was enhanced based on facts

neither admitted by him nor proved to a jury beyond a reasonable

doubt, it was imposed in violation of the Sixth Amendment and



      *
        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opinion should not be published and is not precedent except under the limited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.
     1
         125 S.Ct. 738 (2005).
Booker.2       Where, as here, the defendant preserved the error in

district court, we will vacate the sentence and remand unless the

Government shows that the error was harmless beyond a reasonable

doubt.3    To do this, it must show beyond a reasonable doubt that

the court would have given the defendant the same sentence had it

thought the Guidelines were advisory.4

     The Government has not met this burden.            Although the

district court stated that it would have imposed a 36-month

sentence had the Guidelines been advisory, the court was able to

impose that longer sentence at the time as it was within the

Guidelines range of 33 to 41 months.          As a result, we are unsure

whether its statement was a misstatement.           Because we must vacate

Conner’s sentence due to Booker error, we do not address Conner’s

argument that the district court erred by denying him a reduction

for acceptance of responsibility.5

     Conner’s sentence is VACATED and the case is REMANDED for

resentencing.




     2
         Id. at 756.
     3
         United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
     4
         Id.

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

                                       2
