                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      June 8, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 04-41205
                           Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

CHARLES EDWARD PHILLIPS,

                                        Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                     USDC No. 4:04-CR-18-LED-DDB
                         --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Charles Edward Phillips pleaded guilty to possession of an

unregistered firearm, a shotgun having a barrel length of less then

18 inches, a violation of 26 U.S.C. § 5861(d).              Phillips was

sentenced   to   41   months   of   imprisonment   and   three   years     of

supervised release.      Phillips now appeals, challenging only his

sentence.

     Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738, 756 (2005), Phillips


     *
       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this opinion should not be published and is not precedent except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. 04-41205
                                -2-

argues that the district court erred when it enhanced his offense

level by four pursuant to U.S.S.G. § 2K2.1(b)(5) because the

firearm was possessed in connection with another felony offense,

the possession of methamphetamine.    Under Booker, the judicially

determined enhancement, made under a mandatory guideline regime,

violated his Sixth Amendment right to a trial by jury.   Booker, 125

S. Ct. at 756.

     Where, as here, a defendant has preserved a Booker issue in

the district court, “we will ordinarily vacate the sentence and

remand, unless we can say the error is harmless under Rule 52(a) of

the Federal Rules of Criminal Procedure.”    United States v. Mares,

402 F.3d 511, 520 n.9 (5th Cir. 2005), petition for cert. filed,

No. 04-9517 (U.S. Mar. 31, 2005).   The Government concedes that it

cannot demonstrate that the Booker error is harmless because it

cannot show beyond a reasonable doubt that the mandatory nature of

the guidelines did not contribute to the Phillips’s sentence.

See United States v. Akpan, __F.3d__, No. 03-20875, 2005 WL 852416

at *12 (5th Cir. Apr. 14, 2005). Accordingly, we vacate Phillips’s

sentence and remand for resentencing.     See id.

     VACATE SENTENCE; REMAND FOR RESENTENCING.
