                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 6, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-61162
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

AARON WHAVERS, also known as Big Grass

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                      USDC No. 1:03-CR-90-1
                       --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Aaron Whavers appeals the sentence imposed following his

guilty plea to conspiracy to distribute in excess of five

kilograms of a mixture or substance containing a detectable

amount of cocaine hydrochloride, and in excess of 50 grams of a

mixture or substance containing a detectable amount of cocaine

base, in violation of 21 U.S.C. § 846.

     Whavers argues that the district court committed error under

United States v. Booker, 125 S. Ct. 738 (2005), when it sentenced


     *
       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this opinion should not be published and is not precedent except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. 04-61162
                                -2-

him based on facts that were neither admitted by him or found by

a jury.   The Government argues that Whavers’s appeal is barred by

the waiver of appeal that is contained in his plea agreement and

has filed a motion to dismiss the appeal.

     In Whavers’s plea agreement he expressly waived, inter alia,

the right to appeal his conviction and sentence, or the manner in

which the sentence was imposed, on the grounds set forth in 18

U.S.C. § 3742, or on any ground whatsoever.     However, at his

rearraignment, the district court advised Whavers that he had

waived his right to appeal “as long as it’s a legal sentence.”

The district court thus mischaracterized the appeal waiver by

stating that Whavers would lose his right to appeal as long as

the court imposed a “legal sentence,” because the district

court’s statement implies that Whavers could appeal an “illegal

sentence,” a right that was not included in the appeal waiver.

The district court’s advice thus included an inaccurate

characterization of the appeal waiver and therefore does not

comply with FED. R. CRIM. P. 11(b)(1)(N)’s requirement that the

court advise the defendant of “the terms of any plea-agreement

provision waiving the right to appeal.”     Thus, the appeal waiver

was not knowing and voluntary.   See United States v. Robinson,

187 F.3d 516, 517-18 (5th Cir. 1999).     The appeal waiver

therefore does not bar this appeal.   The Government’s motion to

dismiss is DENIED.
                             No. 04-61162
                                  -3-

     Whavers is correct that the district court committed Sixth

Amendment error under Booker, 125 S. Ct. at 756, when the

district court calculated Whavers’s sentence based upon factual

determinations of drug quantity and offense role that were

neither admitted by Whavers nor determined by a jury.

Additionally, as the Government concedes, Whavers’s objection

apprised the district court that he was raising a Sixth Amendment

challenge to the sentencing enhancements and therefore he

preserved this issue.    See United States v. Akpan, 407 F.3d 360,

376 (5th Cir. 2005).    Where, as here, a Booker error has been

preserved in the district court, this court “will ordinarily

vacate the sentence and remand, unless [this court] can say the

error is harmless under Rule 52(a) of the Federal Rules of

Criminal Procedure.” United States v. Pineiro, 410 F.3d 282, 284

(5th Cir. 2005) (internal quotation marks and citation omitted).

The Government concedes that it cannot show harmlessness in

Whavers’s case.   Thus, the Government has not met its “arduous”

burden of demonstrating “beyond a reasonable doubt that the Sixth

Amendment Booker error did not affect the sentence that [Whavers]

received.”   Pineiro, 410 F.3d at 285, 287.

     Accordingly, Whavers’s sentence is vacated and the case is

remanded for resentencing.

     VACATED AND REMANDED; MOTION TO DISMISS DENIED.
