                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 31, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41528
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMES ELLIOTT GORTON,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:04-CR-270-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     James Elliott Gorton appeals the 188-month sentence he

received following his guilty-plea conviction for being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Gorton argues that the armed career criminal enhancement violated

his constitutional rights because the predicate convictions were

not charged in the indictment nor admitted at rearraignment.

The argument is without merit.   See United States v. Guevara,

408 F.3d 252, 261 (5th Cir.), cert. denied, 2006 U.S. LEXIS 741


     *
       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this opinion should not be published and is not precedent except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. 04-41528
                                -2-

(U.S. Jan. 9, 2006).   Gorton properly acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), but seeks to preserve the issue for

further review.

     Gorton also contends that the district court erred in

sentencing him pursuant to the mandatory Guidelines regime held

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

The sentencing transcript is devoid of evidence that the district

court would have imposed the same sentence under an advisory

regime, and, therefore, the Government has not borne 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, Gorton’s sentence is

VACATED, and the case is REMANDED for further proceedings.     See

id. at 466.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER

PROCEEDINGS.
