                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               September 29, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-30827
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

ANNA MALVEAUX

                      Defendant - Appellant

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                      USDC No. 2:02-CR-20076-1
                        --------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Appellant Anna Malveaux challenges her guilty plea

conviction and the sentence she received for health care fraud

under 18 U.S.C. §§ 1347, 2.    First, she asserts that the district

court abused its discretion in not allowing her to withdraw her

guilty plea.    However, the district court applied the proper test

and made written factual findings on three of the relevant

factors.   Because the court’s decision was not based on an error

of law or a clearly erroneous factual finding, we reject this


     *
       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this opinion should not be published and is not precedent except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. 04-30827
                               -2-

challenge to Malveaux’s conviction.     See United States v. Carr,

740 F.2d 339, 343-44 (5th Cir. 1984).

     Next, Malveaux asserts that the government breached its

obligation under the plea agreement to refrain from opposing a

reduction for acceptance of responsibility.    The government

acknowledges its breach of the agreement.    However, it asserts

that Malveaux released the prosecutor from the obligation when

Malveaux violated the agreement first, by providing false

testimony during the hearing on her motion to withdraw her plea.

We agree with the government.   The “failure of the defendant to

fulfill his promise to cooperate and testify fully and honestly

releases the government from the plea agreement,” even when the

defendant is required to maintain his guilty plea.    Hentz v.

Hargett, 71 F.3d 1169, 1175-76 (5th Cir. 1996)(quotations and

citations omitted).

     Malveaux also asserts that her sentence should be vacated

under United States v. Booker, 125 S. Ct. 738 (2005).    She

objects that her sentence was increased based upon a finding of a

specific loss amount by the district court and upon its finding

that she had obstructed justice.   The first objection is

meritless, as the loss amount found by the district court did not

increase Malveaux’s sentence above what she would have received

otherwise based on her own admission.    Malveaux correctly

asserts, however, that her rights under the Sixth Amendment were

violated when the district court increased her sentence based on
                           No. 04-30827
                                -3-

its finding that she had obstructed justice.   We will reverse a

sentence on appeal of a preserved Booker error unless it was

harmless.   United States v. Pineiro, 410 F.3d 282, 285-86 (5th

Cir. 2005).   “Based on the record before us, we cannot say that

the mandatory nature of the Guidelines at the time of

[Malveaux’s] sentence did not contribute to the sentence that

[s]he received.”   United States v. Akpan, 407 F.3d 360, 377 (5th

Cir. 2005).   Malveaux’s sentence is thus VACATED and the case is

REMANDED to the district court for resentencing in accordance

with United States v. Booker, 125 S.Ct. 738 (2005).     Because we

vacate and remand the entire sentence, we need not reach the

other sentencing errors asserted in this appeal.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
