                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       June 21, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-41126
                             Summary Calendar



                       UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,

                                  versus

                         MICHAEL SHAIN BITTICK,
                                                     Defendant-Appellant.



            Appeal from the United States District Court
                  for the Eastern District of Texas
                     USDC No. 4:03-CR-137-RAS-DDB


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

            Michael Shain Bittick pleaded guilty to receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2), for which

he was sentenced to a 121-month prison term and three years of

supervised release.       Bittick now appeals, challenging only his

sentence.

            Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Bittick contends that the district court erred when it increased

his offense level under the Sentencing Guidelines by a total of

sixteen levels. In light of the Supreme Court’s recent decision in


     *
            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opinion should not be published and is not precedent except under the limited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.
United States v. Booker, 125 S. Ct. 738, 756 (2005), this increase

violated   Bittick’s   Sixth   Amendment      right   to   a   sentence   not

exceeding the maximum authorized by his guilty plea.

           Where, as here, a defendant has preserved a Booker

challenge in the district court, “we will ordinarily vacate the

sentence and remand, unless we can say the error is harmless under

Rule 52(a) of the Federal Rules of Criminal Procedure.”              United

States v. Mares, 402, 511, 520 n.9 (5th Cir. 2005), petition for

cert. filed, No. 04-9517 (U.S. Mar. 31, 2005).             In this case, as

the Government concedes, it has not met its burden of demonstrating

beyond a reasonable doubt that the Sixth Amendment violation at

issue did not contribute to the sentence that Bittick received.

See United States v. Akpan,            F.3d      , No. 03-20875, 2005 WL

852416 at *12 (5th Cir. Apr. 14, 2005).           Accordingly, we vacate

Bittick’s sentence and remand for resentencing.            See id.

           VACATED AND REMANDED FOR RESENTENCING.




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