                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 20, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40148
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOHN WAYNE CLEAVER,

                                      Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 4:02-CR-100-3
                        --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     John Wayne Cleaver appeals his guilty-plea conviction and

sentence for conspiracy to possess with intent to distribute or

dispense 3, 4-methylenedioxy-methamphetamine (“MDMA” or

“ecstasy”), cocaine, methamphetamine and/or gamma

/hydroxybutyrate.     See 21 U.S.C. § 846.    Cleaver claims the court

erred, pursuant to United States v. Booker, 543 U.S. 220 (2005),

in assessing sentencing increases for relevant conduct based upon

uncorroborated statements and for his leadership role in the

offense.   Cleaver’s objections to the Presentence Investigation

     *
       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this opinion should not be published and is not precedent except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. 04-40148
                                -2-

Report and at sentencing sufficiently apprised the court that he

was making a Sixth Amendment objection to being sentenced based

on facts not found by a jury.    See United States v. Akpan, 407

F.3d 360, 376 (5th Cir. 2005).   The increases violated Cleaver’s

Sixth Amendment right to a trial by jury, and the Government has

not met its burden of demonstrating the error was harmless beyond

a reasonable doubt.   See United States v. Pineiro, 410 F.3d 282,

285-86 (5th Cir. 2005).

     SENTENCE VACATED AND REMANDED FOR RESENTENCING.
