                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41565
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

ROBERT H CLARK, JR

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:03-CR-232-1
                       --------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Robert H. Clark, Jr., appeals his sentence following his

guilty plea conviction for conspiracy to possess with intent to

distribute 500 grams or more of a mixture or substance containing

methamphetamine, in violation of 18 U.S.C. §§ 841(a)(1), 846.

Clark argues that his sentence must be vacated in light of United

States v. Booker, 125 S. Ct. 738 (2005).

     In Booker, 125 S. Ct. at 756, the Supreme Court held that

"[a]ny fact (other than a prior conviction) which is necessary to


     *
       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this opinion should not be published and is not precedent except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. 04-41565
                                 -2-

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 also struck down 18 U.S.C. § 3553(b)(1) and thus

rendered the Guidelines advisory only.     Id. at 764-65.

     The district court based Clark’s sentence on its finding

that Clark was responsible for more than 1.5 kilograms of “ice,”

which is a mixture or substance containing d-methamphetamine

hydrochloride of at least 80 percent purity, and it calculated

his offense level accordingly.   The district court also applied a

sentencing enhancement because a firearm was possessed in

relation to this offense and for Clark’s role as a leader or

organizer.   Clark did not admit these facts in the district court

and objected to the enhancements on Sixth Amendment grounds.

Clark’s 360-month sentence exceeded the maximum sentence that

could have been imposed based solely on his plea and constituted

a Sixth Amendment violation under Booker.     See Booker, 125 S. Ct.

at 769.

     When, as here, the defendant has preserved this error, we

will ordinarily vacate the sentence and remand, unless we can say

that the error is harmless.   United States v. Pineiro, 410 F.3d.

282, 284 (5th Cir. 2005).   In order to carry this burden, the

Government must show that the Booker error did not affect the

sentence that the defendant received; it must show “that the
                             No. 04-41565
                                  -3-

district court would have imposed the same sentence absent the

error.”   Id. at 286.

     Although the Government asserts that the sentence was

reasonable, it concedes that it cannot establish beyond a

reasonable doubt that the mandatory nature of the Sentencing

Guidelines at the time of Clark’s sentence did not contribute to

the sentence that he received.    See id.   Accordingly, Clark’s

sentence must be vacated and remanded for resentencing.

     VACATED AND REMANDED.
