                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                       May 10, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-11064
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                versus

         CALLISTUS CHINEDU ORISAKWE, also known as Hollywood,

                                                  Defendant-Appellant.


             Appeal from the United States District Court
                  for the Northern District of Texas
                          (3:02-CR-93-ALL-P)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Callistus Chinedu Orisakwe appeals the sentence imposed for

his conviction on one count of possession of stolen mail, in

violation of 18 U.S.C. § 1708.    He presents two claims.

     First, he maintains the district court’s loss calculation

violated the Sixth Amendment rule of United States v. Booker, 543

U.S. 220 (2005):     any fact other than the existence of a prior

conviction that increases a defendant’s sentence beyond the maximum


     *
       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this opinion should not be published and is not precedent except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
established by his guilty plea must either be admitted by him or

proved to the jury beyond a reasonable doubt.            Orisakwe preserved

this issue by objecting under Blakely v. Washington, 542 U.S. 296

(2004); therefore, we review for harmless error, which requires the

Government to demonstrate beyond a reasonable doubt that the

district court would have imposed the same sentence under advisory

guidelines.      See United States v. Pineiro, 410 F.3d 282, 284 (5th

Cir. 2005).

      In the light of Booker, the loss calculation constitutes error

that was not harmless.          See id. at 286.     The court’s sentencing

Orisakwe to the maximum sentence within the guidelines range is

insufficient to satisfy the Government’s burden. See United States

v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).                Its contention

that the court could have imposed the same sentence likewise fails

to   show   it   would   have    done   so   but   for   the   Booker   error.

Accordingly, we vacate and remand for resentencing.

      Orisakwe also contends his Fifth and Sixth Amendment rights to

due process and to confront adverse witnesses were violated when,

in assessing Orisakwe’s guideline sentence, the district court

relied on out-of-court testimonial statements. Citing, among other

cases, United States v. Navarro, 169 F.3d 228, 236 (5th Cir.),

cert. denied, 528 U.S. 845 (1999), Orisakwe acknowledges this court

has “held that a defendant’s right to confrontation at sentencing

is severely restricted”.        Nevertheless, he suggests this precedent


                                        2
is suspect in the light of, inter alia, Crawford v. Washington, 541

U.S. 36 (2004).        To the extent the issue is deemed foreclosed,

Orisakwe seeks to preserve it for further review.

      “[T]here is no Confrontation Clause right at sentencing”.

Navarro, 169 F.3d at 236. Nothing in Crawford provides its holding

is   applicable   to    sentencing   proceedings.   Accordingly,   this

Crawford-based contention is foreclosed.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




                                     3
