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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-11259
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LUIS ESTRADA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:04-CR-18-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Luis Estrada appeals his guilty-plea sentence for aiding and

abetting the transportation of illegal aliens within the United

States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18

U.S.C. § 2.

     Estrada renews his argument, preserved in the district

court, that in light of the Supreme Court’s decision in Blakely

v. Washington, 542 U.S. 296 (2004), his Sixth Amendment rights

were violated when the district court assessed a two-level


     *
       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this opinion should not be published and is not precedent except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. 04-11259
                                 -2-

enhancement to his sentence pursuant to U.S.S.G. § 2L1.1(b)(5)

for creating a substantial risk of death or serious bodily injury

to his passengers based solely on judicially found facts.

     Where, as here, an error under United States v. Booker, 125

S. Ct. 738 (2005), has been preserved 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. Pineiro, 410 F.3d 282,

284 (5th Cir. 2005) (internal quotation marks and citation

omitted).    “The government bears the burden of showing that the

error was harmless beyond a reasonable doubt.”    Id.   To meet this

burden, the Government must show that the Booker error did not

affect the sentence that the defendant received, i.e., it must

show “that the district court would have imposed the same

sentence absent the error.”    Id.

     The district court sentenced Estrada to the top of his

guidelines range, but this factor is not conclusive to show that

any error was harmless.    Cf. United States v. Rodriguez-Gutierrez,

   F.3d     , No. 04-30451, 2005 WL 2447908 at ** 2-3 (5th Cir.

Oct. 5, 2005) (holding, under a plain error standard of review,

that a sentence at the maximum end of the guidelines range is

strong but not conclusive evidence that the district court would

not have imposed a lesser sentence under an advisory guidelines

scheme).    Although the district court also found such a sentence

to be “adequate” to meet the sentencing objectives of punishment
                             No. 04-11259
                                  -3-

and deterrence, the record contains no other indication by the

district court that it would have imposed the same sentence

absent Booker error.   The Government thus cannot meet its burden.

     Accordingly, Estrada’s sentence is VACATED and the case is

REMANDED for resentencing.

     VACATED AND REMANDED.
