                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-40960
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

          versus

     JOHN ANTHONY GODIN,

                                          Defendant-Appellant.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:03-CR-67-6



Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     John Anthony Godin appeals the sentence imposed July 14, 2004

by the district court following his guilty-plea conviction for

conspiracy to possess with the intent to distribute cocaine.          As

his sole point of error on appeal, Godin argues that under Blakely

v. Washington, 542 U.S. 296 (2004), and the Sixth Amendment, only

the facts admitted by him in conjunction with his guilty plea



     *
      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opinion should not be published and is not precedent except under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.
should have been used to enhance his sentencing range.

     Under United States v. Booker, 543 U.S. 220 (2005), where a

defendant’s sentencing range is increased based on facts not found

by a jury or admitted by the defendant, the sentence violates the

Sixth Amendment.       United States v. Cain, 440 F.3d 672, 676 (5th

Cir. 2006).       Because Godin preserved his Sixth Amendment argument

for review on appeal by raising a Blakely objection in the district

court, our review is for harmless error.                       See United States v.

Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).

     There    is     nothing     in   the        record      that    would    support    a

determination that the district court would have imposed the same

sentence absent its reliance, for sentencing guideline enhancement

purposes,    on    facts   not   found      by     a   jury    nor    found    beyond   a

reasonable doubt and not admitted by the defendant.                            Id.     The

government    concedes     it    cannot         make   the    requisite      showing    of

harmlessness.       Accordingly, Godin’s sentence is VACATED and the

case is REMANDED for resentencing.




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