                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 13, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-10936
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HAROLD WAYNE GRIFFIN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:03-CR-430-ALL-M
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Harold Wayne Griffin (Griffin) pled guilty to one count of

securities fraud and one count of mail fraud, in violation of 15

U.S.C. §§ 77q(a) and 77x and 18 U.S.C. § 1341.    He was sentenced

to two concurrent terms of 64 months of imprisonment.      On appeal,

he argues that his sentence is illegal as it was imposed in

violation of his Sixth Amendment rights.    He contends that his

sentence was enhanced on factual findings made by the court 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this opinion should not be published and is not precedent except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.
                           No. 04-10936
                                -2-

violation of the rule announced in United States v. Booker, 125

S. Ct. 738 (2005).

     Because Griffin raised this issue in the district court by

arguing that Blakely v. Washington, 124 S. Ct. 2531 (2004) should

be applied to the federal sentencing guidelines, the issue is

preserved for review.   See United States v. Akpan,       F.3d     ,

No. 03-20875, 2005 WL 852416, *11 (5th Cir. Apr. 14, 2005).

However, we need not address the issue whether Griffin’s sentence

was imposed in violation of his Sixth Amendment rights.

     The district court sentenced Griffin to two concurrent terms

of 64 months, but, as of the time of the offense, the statutory

maximum sentence for each underlying offense was five years.     15

U.S.C. §§ 77q(a), 77x; 18 U.S.C. § 1341.

     The presentence report (PSR) calculated the sentencing range

as 51-71 months, using the aggregate statutory maximum term of 10

years and allowing for consecutive sentences.   See U.S.S.G.

§ 5G1.2(d).   However, the district court imposed two concurrent

sentences of 64 months and thereby committed plain error in

imposing an illegal sentence which exceeds the statutory maximum.

See United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).

The matter must be remanded for resentencing.   As Griffin will be

sentenced under an advisory guideline scheme as opposed to a

mandatory scheme, the claim raised under Booker will be moot.

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

REMANDED to the district court for resentencing.
