                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 31, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40987
                         Summary Calendar



UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,
versus

TERRY A. SIMPSON,

                               Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 4:03-CR-189-RAS-ALL
                       --------------------

Before GARWOOD, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Terry A. Simpson appeals his sentence following his guilty-

plea conviction to receipt of child pornography.     He renews his

claim that the district court erred by adjusting his offense

level by four levels under U.S.S.G. § 2G2.2(b)(3) because the

factual finding supporting the adjustment was made by the

district court and was not made by a jury or admitted by him,

thus violating the Fifth and Sixth Amendments under Blakely v.

Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,

125 S. Ct. 738 (2005).   The Government concedes that Simpson’s

     *
       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this opinion should not be published and is not precedent except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. 04-40987
                                  -2-

sentence is erroneous after Booker, that it cannot prove beyond a

reasonable doubt that the district court would have imposed the

same sentence if it knew that the guidelines were only

discretionary, and that the case should be remanded for

resentencing.   Simpson’s sentence is thus vacated and the case is

remanded for resentencing.    United States v. Akpan, ___ F.3d ___,

No. 03-20875, 2005 WL 852416 at *11-12 (5th Cir. Apr. 14, 2005).

     VACATED AND REMANDED FOR RESENTENCING.
