                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30830
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EUGENE MATTHEW WARE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 5:03-CR-50043-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Eugene Matthew Ware appeals his sentence for having

distributed five or more grams of crack cocaine, in violation of

21 U.S.C. § 841(a)(1).   Ware contends that the district court

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

attributing 45.8 grams of crack to him for sentencing purposes.

Ware also argues that the district court erred by sentencing him

under the mandatory Sentencing Guidelines regime that was held to

be unconstitutional in Booker.


     *
       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this opinion should not be published and is not precedent except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. 04-30830
                                 -2-

     The Government argues, inter alia, that because Ware was

sentenced in the middle of the applicable guideline range, the

sentencing error was harmless.   This court has rejected such an

assertion.   See United States v. Garza, 429 F.3d 165, 170-71 (5th

Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).    Moreover, the

record in this case does not show that the district court would

have imposed the same sentence under an advisory regime.    Thus,

the Government cannot bear its burden of establishing beyond a

reasonable doubt that the district court’s error was harmless.

See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

Accordingly, Ware’s sentence is VACATED and the case is REMANDED

for further proceedings.   See id. at 466.    Because we vacate

Ware’s sentence and remand for resentencing under an advisory

guideline regime, we do not reach the other claim of sentencing

error that Ware raises.    See United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005).

     VACATED AND REMANDED FOR RESENTENCING.
