                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 25, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40084
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MANUEL DE LA FUENTE,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-476-ALL
                      --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Manuel De La Fuente pleaded guilty to possession with intent

to distribute in excess of 100 kilograms of marihuana.       He was

sentenced to 109 months of imprisonment and five years of

supervised release.    De La Fuente argues that the district court

committed reversible error when it sentenced him pursuant to the

mandatory sentencing guidelines system held unconstitutional in

United States v. Booker, 543 U.S. 220 (2005), which requires that

his sentence be vacated and remanded for resentencing.       He



     *
       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this opinion should not be published and is not precedent except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. 05-40084
                                 -2-

contends that based on the record and the sentencing hearing, the

Government cannot show harmless error.

     De La Fuente’s objection in the district court based on

Blakely v. Washington, 542 U.S. 296 (2005) preserved his Fanfan

challenge for review for harmless error.    United States v. Reyes-

Celestino, 443 F.3d 451, 453 (5th Cir.), cert. denied, 126 S. Ct.

2309 (2006); United States v. Walters, 418 F.3d 461, 463 (5th

Cir. 2005).**

     The district court erred by sentencing De La Fuente under

the formerly mandatory guidelines system.    United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005).    In light of the Government’s concession

that it cannot show harmless error on the current record, and

considering the district court’s statements at sentencing about

the potential effect of a decision in Booker, we conclude that

the Government has not shown harmless error.   De La Fuente’s

sentence is vacated and this case is remanded for resentencing in

accordance with Booker.    See Walters, 418 F.3d at 464-66.

     Because we remand based on the Fanfan error, we need not

address the remaining sentencing issues raised by De La Fuente

concerning the application of the adjustment for obstruction of

justice under U.S.S.G. § 3C1.1; the corresponding denial of



     **
        “Fanfan” error, one of two types of error addressed in
Booker, “is found where the district court applied the mandatory
Guidelines to enhance a defendant's sentence absent any Sixth
Amendment Booker error.” Walters, 418 F.3d at 463.
                          No. 05-40084
                               -3-

acceptance of responsibility; whether the district court’s

finding of obstruction violated the Sixth Amendment; whether De

La Fuente’s subsequent conviction on the escape charge made the

obstruction of justice issue moot; and whether the finding on the

quantity of drugs violated Booker.   See United States v. Akpan,

407 F.3d 360, 377 n.62 (5th Cir. 2005) (declining to address

other claims of sentencing error when remanding pursuant to

Booker); United States v. Mendoza-Blanco, 440 F.3d 264, 266 n.10

(5th Cir.), cert. denied, 126 S. Ct. 2314 (2006) (Fanfan).

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
