                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 3, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11137
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOE GARY RIVAS, JR.,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 6:02-CR-42-1-C
                       --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Joe Gary Rivas, Jr., appeals the sentence imposed for his

conviction on one count of conspiracy to import cocaine and

marijuana, arguing that the district court’s determination of

drug quantity violated the Sixth Amendment rule of United States

v. Booker, 543 U.S. 220 (2005).   As Rivas preserved the issue, 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 if the Sentencing Guidelines


     *
       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this opinion should not be published and is not precedent except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. 04-11137
                                  -2-

had been advisory.     See United States v. Pineiro, 410 F.3d 282,

284 (5th Cir. 2005).

     We reject the Government’s contention that there was no

error because Rivas admitted the drug quantity.    Rivas admitted

only to importing at least five kilograms of cocaine and at least

1,000 kilograms of marijuana.    This does not establish that Rivas

pleaded guilty to the specific amounts of 264 kilograms of

cocaine and more than 9,000 kilograms of marijuana determined by

the Presentence Report.     See, e.g., United States v. Garcia, 416

F.3d 440 (5th Cir. 2005) (finding Sixth Amendment error where

defendant pleaded guilty to conspiracy to possess with intent to

distribute more than 1,000 kilograms of marijuana, and district

court determined total amount to be 48,651.7 kilograms).

     In light of Booker, the district court’s determination of

drug quantity constitutes error.     See Pineiro, 410 F.3d at 286.

We also conclude that the error was not harmless.    The fact that

the court sentenced Rivas to the maximum sentence within the

guidelines range is insufficient to satisfy the Government’s

burden.   See United States v. Woods,       F.3d    , No. 04-11058,

2006 WL 163475, at *3 (5th Cir. Jan. 24, 2005).    The Government’s

contention that the district court could have imposed the same

sentence likewise fails to show that the district court would

have imposed the same sentence but for the Booker error.
                          No. 04-11137
                               -3-

     Rivas raises no other complaint.

     The case is remanded to the district court to decide whether

to resentence the defendant.

     REMANDED.
