                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 28, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-30821
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

COREY DOWDEN,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                     USDC No. 2:03-CR-79-2-F
                       --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Corey Dowden was convicted by a jury of conspiracy to commit

mail fraud and identity theft and of two counts of mail fraud.

The district court sentenced Dowden to concurrent 33-month terms

of imprisonment and to concurrent three-year periods of

supervised release.   Dowden was ordered to pay restitution in the

amount of $290,865.59.   Dowden gave timely notice of his appeal.

     Dowden contends that the Government failed to prove that he

committed identity theft or mail fraud or that he knew that James


     *
       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this opinion should not be published and is not precedent except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. 04-30821
                                  -2-

Knox, his business partner, was using stolen identities to obtain

loans fraudulently.    We review this question under the rational-

juror standard.     See United States v. Villarreal, 324 F.3d 319,

322 (5th Cir. 2003).    Dowden must show that no reasonable juror

could have found that the evidence established his guilt beyond a

reasonable doubt.     See Jackson v. Virginia, 443 U.S. 307, 319

(1979).

     To prove a conspiracy under 18 U.S.C. § 371, the Government

must prove beyond a reasonable doubt “(1) an agreement between

two or more people, (2) to commit a crime against the United

States, and (3) an overt act by one of the conspirators to

further the objectives of the conspiracy.”     United States v.

Morrow, 177 F.3d 272, 286 (5th Cir. 1999) (quotation marks

omitted).   The Government need not present direct evidence of an

actual agreement between the coconspirators, but a conspiracy may

be inferred from circumstantial evidence.     United States v.

Stephens, 964 F.2d 424, 427 (5th Cir. 1992).    Moreover, the

Government need not prove that a conspirator had knowledge of all

the details of the conspiracy, as long as knowledge of the

essential elements of the conspiracy is proven.     United States v.

Judd, 889 F.2d 1410, 1415 (5th Cir. 1989).    Mere association or

presence is not by itself sufficient to prove knowing

participation in a conspiracy.     United States v. Cortinas, 142

F.3d 242, 249 (5th Cir. 1998).
                            No. 04-30821
                                 -3-

     Knox testified that Dowden was a knowing and active

participant in each of the fraudulent loan transactions and that

the two men were equal partners.   A reasonable juror could have

believed that testimony and this court must view the evidence in

the light most favorable to the Government.    See Jackson, 443

U.S. at 319.   Knox’s testimony alone is sufficient to uphold the

verdict.   See United States v. Medina, 161 F.3d 867, 872–73 (5th

Cir. 1998).    Knox’s testimony was corroborated by the testimony

of the victims and other fact witnesses.   We conclude that the

evidence was sufficient.

     Dowden contends that the district court erred by limiting

his cross examination of a Government witness when it refused to

permit him to show the witness Knox’s photograph in response to

her testimony that she had never met Knox.    Dowden has not shown

that the district court’s ruling was clearly prejudicial.        United

States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998).

     Dowden contends that his sentence was imposed illegally in

light of United States v. Booker, 543 U.S. 220 (2005).**    Because

Dowden preserved this issue by invoking Blakely v. Washington,

542 U.S. 296 (2004), our review is for harmless error.     See

United States v. Rodriguez-Mesa, ___ F.3d ___ , 2006 WL 633280,




     **
        Dowden’s Booker-based challenge of the district court’s
restitution order is foreclosed. See United States v. Garza, 429
F.3d 165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444
(2006).
                           No. 04-30821
                                -4-

*5 (5th Cir. Mar. 15, 2006) (No. 04-41757); United States v.

Walters, 418 F.3d 461, 463 (5th Cir. 2005).

     The district court erred in sentencing Moreno pursuant to

the mandatory Sentencing Guidelines.     See United States v. Woods,

440 F.3d 255, 257 (5th Cir. Feb. 13, 2006) (No. 04-11058); see

also United States v. Garza-Lopez, 410 F.3d 268, 275 n.2 (5th

Cir.) (when vacating a sentence due to a misapplication of the

then-mandatory Guidelines, it is not necessary to address Sixth

Amendment claim), cert. denied, 126 S. Ct. 298 (2005).     Because

the error was preserved, the Government bears the “heavy burden”

of showing that the error is harmless.    See Woods, 440 F.3d at

257–59.   The Government has not carried its burden.    A sentence

at the top of the guideline range is not sufficient, without

more, to show that Booker error was harmless.     See id. at 258–59.

Nor is the fact that the district court narrowly refused an

upward departure from the guideline range.      See id. at 260–61.

The district court’s stated reasons do not reveal whether the

district court would have imposed the same sentence under an

advisory guidelines regime.   See id. at 262.

     Although Dowden has been released from custody, his Booker-

based challenge of his sentence is not moot.     See United States

v. Johnson, 529 U.S. 53, 60 (2000) (recognizing that trial court

may modify an individual’s conditions of supervised release at

any time after one year under 18 U.S.C. § 3583(e)(1) if warranted

by conduct of defendant and interests of justice).     We neither
                          No. 04-30821
                               -5-

express nor intimate any view as to whether the terms of Dowden’s

supervised release should be modified.

     The convictions are AFFIRMED.   The sentence is VACATED and

case REMANDED FOR RESENTENCING.
