                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 20, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41111
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ERIC BANKS,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                      USDC No. 2:02-CR-3-TJW-ALL
                         --------------------

Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Eric Banks pleaded guilty to possession of an unregistered

firearm, in violation of 18 U.S.C. §§ 5841, 5861(d), and 5871,

and was sentenced to 75 months in prison and three years of

supervised release.   Banks now appeals, challenging only his

sentence.

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

contends that the district court erred when it imposed a four-

level Sentencing Guidelines increase under U.S.S.G. § 2K2.1(b)(5)


     *
       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this opinion should not be published and is not precedent except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. 04-41111
                                    -2-

for having used and possessed a destructive device in connection

with another offense.    In light of the Supreme Court’s recent

decision in United States v. Booker, 125 S. Ct. 738, 756 (2005),

this increase violated Banks’s Sixth Amendment right to a trial

by jury.

     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).        In this case, the

Government 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 Banks received.        See United

States v. Akpan,        F.3d     , No. 03-20875, 2005 WL 852416 at

*12 (5th Cir. Apr. 14, 2005).      Accordingly, we vacate Banks’s

sentence and remand for resentencing.         See id.

     VACATED AND REMANDED RESENTENCING.
