                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 12, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41009




UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

TEHRAN ANDRE BATEY,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:03-CR-67-2
                        --------------------

Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL,
District Judge.*

PER CURIAM:**

     Tehran Batey appeals the sentence he received following his

guilty plea for possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a).   He renews his argument,

preserved in the district court, that his constitutional rights

were violated when the district court assessed a two-level


     *
        District Judge for the Southern District of Texas,
sitting by designation.
     **
        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that this opinion should not be published and is not precedent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. 04-41009
                               -2-

enhancement for possession of a firearm, pursuant to §

2D1.1(b)(1) (2003), citing Blakely v. Washington, 159 L.Ed. 2d

403 (2004).

     The government concedes that it cannot meet its burden under

a harmless error analysis that the mandatory nature of the

guidelines did not contribute to the sentence imposed.   United

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

*12 (5th Cir. April 14, 2005).   Accordingly, Batey’s sentence

must be vacated and remanded for resentencing consistent with

Booker, 125 S.Ct. 738 (2005).

VACATED and REMANDED.




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