                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 3, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20999
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSCAR RENE ROMERO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-243-ALL
                      --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Oscar Rene Romero appeals the 88-month sentence he received

following his conviction by a jury of possessing with the intent

to distribute and importation of more than 500 grams of cocaine,

in violation of 21 U.S.C. §§ 841, 952, and 960.   He contends,

inter alia, that the district court erred in sentencing him

pursuant to the mandatory Guidelines regime held unconstitutional

in United States v. Booker, 125 S. Ct. 738, 764-65 (2005).        The

sentencing transcript is devoid of evidence that the district


     *
       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this opinion should not be published and is not precedent except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. 04-20999
                                -2-

court would have imposed the same sentence under an advisory

regime, and, therefore, the Government has not borne its burden

of establishing beyond a reasonable doubt that the district

court’s error was harmless.   See United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005); United States v. Walters, 418 F.3d 461,

464 (5th Cir. 2005).   We further hold that Romero’s remaining

contentions, all of which arise from the jury’s determination of

the amount of drugs involved in his offense, are unavailing.     As

to those contentions, the judgment of the district court is

AFFIRMED.

     Accordingly, Romero’s sentence is VACATED, and the case is

REMANDED for further proceedings.   See id. at 466.

     AFFIRMED IN PART; SENTENCE VACATED AND REMANDED IN PART FOR

FURTHER PROCEEDINGS.
