                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 21, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-10593
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

KENNY WASHINGTON,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 3:02-CR-00287-1
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     After we affirmed the judgment of conviction and sentence of

Kenny Washington, the Supreme Court decided United States v.

Booker1 and vacated and remanded for further consideration in

light of that case.     We requested and received supplemental

letter briefs addressing the impact of Booker.




     *
       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this opinion should not be published and is not precedent except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.
     1
      125 S.Ct. 738 (2005).
                            No. 03-10593
                                 -2-

     Washington argues that he preserved a Booker challenge by

objecting to the sentencing enhancements and that, therefore, it

is the Government’s burden to show that the error was harmless.

Alternatively, he argues that if the error was not preserved and

the plain-error standard of review applies, he prevails under

that standard.

     Washington’s objections were to sufficient to preserve his

Booker claim.2   Therefore, we review for harmless error.3   The

Government has the “burden of showing beyond a reasonable doubt

that the error did not affect the outcome of the district court

proceedings.”4

     The Government has pointed to no evidence to show that the

district court would have imposed the same sentence absent the

sentencing error.5   Although the district court stated that it

had “struggled” in deciding whether to sentence Washington at the

high or low end of the Guidelines range, in fact the court

sentenced him at the low end.   Because the Government failed to

meet its burden, Washington’s sentence is VACATED and the matter

REMANDED for sentencing.   In our prior decision, we held that the

district court did not abuse its discretion in limiting the


     2
      See United States v. Akpan, 407 F.3d 360, 375-76 (5th Cir.
2005).
     3
      United States v. Pineiro, 410 F.3d 282, 286 (5th Cir.
2005).
     4
      Id.
     5
      See id.
                           No. 03-10593
                                -3-

cross-examination of Ralphcel Eaton or in allowing Tom Young to

testify.   Because Booker does not change this result, that

portion of our prior decision is reinstated.
