                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              August 5, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-50832
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALEXANDER FRANK HENEFIELD,

                                    Defendant-Appellant.

                           * * * * * * *
                         Consolidated with
                            No. 04-50844
                           * * * * * * *

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALEXANDER HENEFIELD,

                                    Defendant-Appellant.


                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                     USDC No. 5:04-CR-55-6-XR
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*


     *
       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this opinion should not be published and is not precedent except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. 04-50832 c/w
                             04-50844
                                -2-

     Alexander Frank Henefield pleaded guilty to conspiracy to

manufacture and distribute methamphetamine and to possession with

intent to distribute marijuana.   In anticipation that the Supreme

Court might hold that the United States Sentencing Guidelines

were invalid under Blakely v. Washington,124 S. Ct. 2531 (2004),

the district court imposed alternative sentences:   one sentence

under the Sentencing Guidelines and a second, discretionary

sentence to take effect if the Sentencing Guidelines were

invalidated.   The government concedes that under the Supreme

Court’s decision in United States v. Booker,125 S.Ct. 738 (2005),

Henefield’s sentence “was not harmless error” because the

district court would have imposed a lesser sentence under an

advisory Sentencing Guideline scheme.   Accordingly, we vacate

Henefield’s sentence and remand the case for resentencing.      See

United States v. Mares, 402 F.3d 511 (5th Cir.), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517).

     The record provides no support for Henefield’s argument that

his guilty plea was not knowing and voluntary.   See United States

v. Johnson, 1 F.3d 296, 302-03 (5th Cir. 1993) (en banc).

Henefield’s argument that the district court erred by refusing to

allow him to withdraw his plea is frivolous as Henefield did not

make such a request in the district court.

     AFFIRMED; SENTENCE VACATED AND REMANDED.
No. 04-50832 c/w
    04-50844
       -3-
