                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                        July 11, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11083
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                          JIMMY YANCEY,

                                                Defendant-Appellant.


          Appeal from the United States District Court
                for the Northern District of Texas
                        (4:04-CR-40-ALL-A)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Jimmy Yancey appeals the sentence imposed following his guilty

plea to making a false statement to a federally insured bank.

Yancey was sentenced to a term of imprisonment of 21 months to be

followed by a five-year term of supervised release.

     Yancey asserts: the district court erred in enhancing his

guideline sentencing range based on facts he did not admit; the

district court violated his Sixth Amendment rights in the light of

the holdings in Blakely v. Washington, 124 S. Ct. 2531 (2004) and



     *
       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this opinion should not be published and is not precedent except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.
United States v. Booker, 125 S. Ct. 738 (2005); and the Government

has failed to show harmless error.

     The Government concedes the district court committed error in

increasing the penalty based on judge-found facts under a mandatory

guideline system. The Government, however, maintains the error was

harmless in the light of the district court’s decision not to

impose a sentence at the bottom of the sentencing guideline range.

     Yancey preserved this sentencing issue by raising a Blakely

challenge before the district court.            When a Booker error is

preserved in district court, this court “will ordinarily vacate the

sentence and remand” unless the error is harmless.            United States

v. Pineiro, ___ F.3d ___, No. 03-30437, 2005 WL 1189713, at *2 (5th

Cir. 20 May 2005) (internal quotation marks and citation omitted).

The Government bears the burden of demonstrating the error was

harmless beyond a reasonable doubt.       Id.   To carry this burden, the

Government   must   show   the   Booker    error   did     not   affect   the

defendant’s sentence, i.e., “that the district court would have

imposed the same sentence absent the error”.         Id.

     The district court erred by applying the enhancements for the

amount of loss and use of a sophisticated scheme because the facts

supporting these enhancements were neither admitted by Yancey nor

found by a jury beyond a reasonable doubt.         See Booker, 125 S. Ct.

at 756.   The Government’s contention that the error is harmless

because the district court imposed a sentence at the middle, rather


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than at the bottom, of the guideline range does not address the

issue whether the district court would have imposed a lesser

sentence if a lower guideline sentencing range had been determined,

based solely on Yancey’s admissions.   Because the Government has

not shown the district court would have imposed the same sentence

absent the Booker error, the sentence is VACATED and the case is

REMANDED for resentencing.   See Pineiro, 2005 WL 1189713, at *2.

                                           VACATED AND REMANDED




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