                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 18, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30019
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

HERIBERTO AVILES, JR.,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 2:04-CR-20027-1
                       --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Heriberto Aviles, Jr., a federal prisoner (# 69269-079),

appeals the sentence imposed following his guilty-plea conviction

of assaulting a fellow inmate with a dangerous weapon with intent

to do bodily harm, in violation of 18 U.S.C. § 113(a)(3).

     Aviles argues that his sentence is illegal under Booker

because it was imposed pursuant to a mandatory application of the

sentencing guidelines.   In the district court, Aviles objected

under Blakely v. Washington, 124 S. Ct. 2531 (2004), to

sentencing increases based on the career-offender guideline,


     *
       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this opinion should not be published and is not precedent except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. 05-30019
                                  -2-

U.S.S.G. § 4B1.1, and that U.S.S.G. § 4B1.1 was itself

“unconstitutional.”    This second allegation effectively raises

the type of error raised by the other respondent in Booker, Ducan

Fanfan, i.e., that imposition of a sentence pursuant to a

mandatory Guidelines regime violated his rights.      See Booker,

125 S. Ct. at 750, 768-69; United States v. Walters,        F.3d    ,

No. 04-20669, 2005 WL 1693895 at *      ,   (5th Cir. July 21, 2005),

2005 WL 1693895 at *     .   The Government concedes that it cannot

show harmless error as to Aviles’s “Fanfan”-type claim.     Because

the Government admits that it cannot show that the district court

would not have sentenced Aviles differently under an advisory

Guidelines system, see United States v. Akpan, 407 F.3d 360, 377

(5th Cir. 2005), we REMAND for the district court to decide if

resentencing is warranted.

     REMANDED.
