                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                September 29, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-40986
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MICHELLE LENNETTE PILCHER,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                    USDC No. 4:03-CR-84-RAS-DDB-3
                         --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Michelle Lennette Pilcher appeals from her guilty-plea

conviction for possession or distribution of a listed chemical

with knowledge, or reason to know, of its wrongful intended use.

Pilcher argues that, in light of United States v. Booker, 125

S. Ct. 738 (2005), the district court erred in sentencing her

based upon facts that were not admitted by her or found by a

jury.    The increases in Pilcher’s sentence for relevant conduct,

possession of a firearm, and creating a substantial risk of harm


     *
       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this opinion should not be published and is not precedent except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. 04-40986
                                  -2-

to human life or the environment violated her Sixth Amendment

right to a trial by jury, and the Government has not carried its

burden of demonstrating that the errors were harmless.   See

United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005).

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

REMANDED FOR RESENTENCING.
