                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                May 11, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                           No. 04-41275
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus

KAYE SHAW MARR,

                                                                                       Defendant-
                                                          Appellant.

                      --------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Eastern District of Texas
                               USDC No. 3:03-CR-11-RAS-DDB-1
                      --------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Kaye Shaw Marr appeals her sentence for conspiring to manufacture, distribute, or possess

with the intent to manufacture or distribute more than five but less than 50 grams of

methamphetamine, in violation of 21 U.S.C. § 846, and for possession of pseudoephedrine with the

intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c). She contends that the



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
district court erred under United States v. Booker, 543 U.S. 220 (2005), in attributing 49 grams of

methamphetamine to her for sentencing purposes. Marr additionally argues that the district court

erred in sentencing her under the mandatory sentencing guidelines regime held unconstitutional in

Booker.

       The sentencing transcript is devoid of evidence that the district court would have imposed the

same sentence under an advisory regime, and, therefore, as the Government concedes, it cannot bear

its burden of establishing beyond a reasonable doubt that the district court’s error was harmless. See

United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005). Accordingly, Marr’s sentence is

VACATED, and the case is REMANDED for further proceedings. See id. at 466. Because we

vacate Marr’s sentence and remand for resentencing under an advisory guidelines scheme, we do not

reach the other claim of sentencing error that she raises. See United States v. Akpan, 407 F.3d 360,

377 n.62 (5th Cir. 2005).

       VACATED AND REMANDED FOR RESENTENCING.




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