                                                        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. 04-40989
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ROBERT JOHN RATER,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                     USDC No. 4:04-CR-7-RAS-ALL
                         --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Robert John Rater appeals the sentence imposed following his

guilty-plea conviction for being a felon in possession of a

firearm.    He contends that the district court erred in imposing a

four-level upward adjustment to his offense level based on the

court’s finding that the offense involved the possession of 8-24

firearms.   He also asserts that the district court erred in

determining that three of his prior offenses were not related




     *
       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this opinion should not be published and is not precedent except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. 04-40989
                                 -2-

under U.S.S.G. § 4A1.2(a)(2).   Rater raised both of these

arguments before the district court.

     In United States v. Booker, 125 S. Ct. 738, 756 (2005), the

Supreme Court applied its previous holdings in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124

S. Ct. 2531 (2004), to the federal sentencing guidelines and

ruled that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized

by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.”    Booker excised from the Sentencing Reform Act

the mandatory duty of district courts to apply the federal

sentencing guidelines and effectively rendered the guidelines

advisory only.    Id. at 764; see United States v. Mares, 402 F.3d

511, 518 (5th Cir.), petition for cert. filed, No. 04-9517 (U.S.

Mar. 31, 2005).   In Mares, we explained that Booker error occurs

when “a sentence, which was enhanced by using judge found facts,

not admitted by the defendant or found by the jury, in a

mandatory Guidelines system” is imposed.    Mares, 403 F.3d at 521.

     Such is the case here.   Rater’s sentence was enhanced based

on the district court’s finding that his conduct involved 8-24

firearms, a fact to which there is no evidence in the record on

appeal that he admitted and which was not submitted to a jury.

Additionally, because Rater was sentenced prior to the decision

in Booker, the district court applied the sentencing guidelines
                           No. 04-40989
                                -3-

as mandatory, rather than advisory.   Given the increase in the

guidelines range applied by the district court, Rater was harmed

by the district court’s error.   See United States v. Akpan, __

F.3d __, No. 03-20875, 2005 WL 852416 at *11-*12 (5th Cir. Apr.

14, 2005).   Rater objected to the enhancement on facts neither

admitted nor found by a jury, and he has preserved the error.

Accordingly, Rater’s sentence is vacated and remanded to the

district court for resentencing in accordance with Booker.

     In view of the order of vacatur, we pretermit consideration

of the other sentencing issue raised by Rater.

     SENTENCE VACATED AND REMANDED.
