                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      December 1, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-41759
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                             MARY RUTH WEST,

                                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                        USDC No. 4:04-CR-52-1
                         --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

      Mary Ruth West appeals the 21-month sentence imposed following

her   guilty   plea   convictions    for    four   counts   of   making     and

subscribing false tax returns. West argues that the district court

erred in sentencing her in violation of United States v. Booker,

125 S. Ct. 738 (2005) because she did not admit the conduct used to

enhance her sentence.      She argues that she preserved the error in

the district court and that the Government cannot show that the

error is harmless.



      *
             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opinion should not be published and is not precedent except under the limited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.
     In Booker, the Supreme Court extended its Sixth Amendment

holding in Blakely v. Washington, 124 S. Ct. 2531 (2004) to the

federal sentencing guidelines.         “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”       Booker, 125 S. Ct. at 756.   The

Court in Booker excised 18 U.S.C. § 3553(b)(1) of the Sentencing

Reform Act, rendering the federal sentencing guidelines advisory.

Id. at 764-65.

     When, as here, a Booker error is preserved, this court will

ordinarily vacate and remand for resentencing unless the Government

can establish harmless error beyond a reasonable doubt.         United

States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).               The

Government acknowledges that the factual findings made by the

district court to enhance West’s sentence violated the Sixth

Amendment in light of Booker.      It also concedes that it cannot

establish harmless error beyond a reasonable doubt.

     The district court imposed a guideline sentence of 21 months

and alternative sentences of 13 months if the guidelines were found

to be unconstitutional or if it was determined that the district

court was not authorized to make factual findings supporting

sentencing enhancements.   It cannot be determined from the record

which sentence the district court would have imposed if it had

known that the sentencing guidelines were discretionary rather than

                                   2
mandatory in nature.   Therefore, the sentence is VACATED, and the

case is REMANDED to the district court for resentencing in light of

Booker.




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