                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 27, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41325
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN LOMAS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 6:04-CR-46-ALL
                       --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Lomas appeals the sentence imposed following his

guilty-plea conviction for two counts of unlawful transportation

of illegal aliens in violation of 8 U.S.C. § 1324.     Lomas argues

that the district court erred in imposing his sentence under the

then mandatory United States Sentencing Guidelines held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005).

Lomas specifically objected to the sentence based on the then

pending Booker and Fanfan cases.   The Government concedes that


     *
       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this opinion should not be published and is not precedent except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. 04-41325
                                 -2-

Lomas’s objection based on United States v. Blakely, 542 U.S. 296

(2004), at sentencing was sufficient to preserve his Fanfan

claim.    See United States v. Walters, 418 F.3d 461, 463 (5th Cir.

2005)(discussing difference between Booker error and Fanfan

error).    We review preserved Fanfan claims for harmless error.

United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).   The Government must prove beyond a

reasonable doubt that the outcome of the district court

proceedings was not affected by the application of the mandatory

Guidelines.

     The Government has not demonstrated that the Fanfan error

was harmless beyond a reasonable doubt.    The district court

expressly declined to say what the sentence would be if Booker

and Fanfan were decided favorably to Lomas.    The district court

did not make any comments indicating whether it would have

imposed the same sentence under an advisory guidelines system.

     The case is REMANDED for reconsideration by the district

court and to resentence Lomas if appropriate.
