               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 04-1786

                             UNITED STATES,

                                Appellee,

                                     v.

                             EASTON WILSON,

                        Defendant, Appellant.


          [Hon. George Z. Singal, U.S. District Judge]

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE



                                  Before

                       Boudin, Chief Judge,
                Lynch and Lipez, Circuit Judges.



     Robert M. Napolitano on brief for appellant.
     Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.



                             June 15, 2005
            Per Curiam. Defendant, Easton Wilson, appeals from a

sentence imposed before the United States Supreme Court's recent

decision in United States v. Booker, __ U.S. __, 125 S. Ct. 738

(2005).    In his original brief (filed before Booker was decided),

Wilson argued that his sentence had been enhanced based on judge-

made findings, in violation of Blakely v. Washington, 542 U.S. ___,

124 S. Ct. 2531 (2004).1          In a supplement Booker brief, Wilson

argues that the district court erred in sentencing him under a

mandatory Guidelines system and that he is entitled to resentencing

in conformance with Booker. The government opposes a remand.

            Wilson maintains that he preserved a claim of Booker

error below, by arguing in his objection to the presentence report

that the court's fact-finding as to drug quantity violated Apprendi

v.   New   Jersey,   530   U.S.   466    (2000),   and   its   progeny.   The

government concedes that Wilson made an Apprendi argument before

the district court.        That is all that we require to preserve a

claim of Booker error.       See United States




      1
       Because we conclude that Wilson is entitled to a remand and
resentencing based on his claim in his supplemental brief, we need
not consider the claim in his original brief that the district
court erred in determining drug quantity. The sentence imposed
after remand will be subject to review for reasonableness. See
United States v. Vazquez-Rivera, ___ F.3d ___, No. 02-1818, 2005 WL
1163672,slip op. at 29 (1st Cir. May 18, 2005).

                                        -2-
v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) (stating that

"[t]he argument that a Booker error occurred is preserved if the

defendant below argued Apprendi").

            Because Wilson's claim of Booker error was preserved, the

government has the burden of showing harmlessness. Chapman v.

California, 386 U.S. 18, 24 (1967); United States v. Ventura-Cruel,

356 F.3d 55, 64 (1st Cir. 2003).                 "Where an error relates to the

validity of a defendant's sentence, it is harmless only if it did

not   affect    the      district   court's       choice    of   sentence."    United

States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005).                     Where the

error is of constitutional magnitude, as here, the government must

prove that it was harmless beyond a reasonable doubt. United States

v. Vazquez-Rivera, ___ F.3d ___, No. 02-1818, 2005 WL 1163672, slip

op. at 25 (1st Cir. May 18, 2005).               Therefore, on appellate review

the government has the burden of proving, beyond a reasonable

doubt, that "a lower sentence would not have been imposed had the

Guidelines been advisory."              Id. at 25.

            The government has not met this heavy burden.                     In its

supplemental brief, the government argues that the imposition of a

sentence in the middle of the applicable Guidelines range and the

sentencing      judge's      express      finding     that       the   sentence   was

"appropriate," with reference to the statutory sentencing factors

contained      in   18    U.S.C.    §    3553(a)(2),       satisfies    its   burden.

Although the result might be different under plain error review,


                                           -3-
the government has not met its burden of demonstrating harmless

error beyond a reasonable doubt on that showing.

           Accordingly, the sentence is vacated and the case is

remanded   for   resentencing   under    the   standards   articulated   in

Booker, 125 S. Ct. at 764-65.           We intimate no view as to the

appropriate sentence to be imposed.

           The conviction is affirmed, the sentence is vacated, and

the matter is remanded for resentencing.




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