                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 23, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-11291
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JACK EDWARD BALL,

                                         Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                      USDC No. 3:04-CR-93-ALL-P
                         --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jack Edward Ball appeals the sentence imposed following his

guilty-plea conviction for two counts of theft or receipt of

stolen mail matter, arguing that it violates the Sixth Amendment

rule announced in Blakely v. Washington, 542 U.S. 296 (2004).

Ball’s Blakely objection in the district court preserved whether

Ball’s sentence violated United States v. Booker, 543 U.S. 220

(2005), for appeal.      Accordingly, we review for harmless error,

which requires a showing beyond a reasonable doubt that the



     *
        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opinion should not be published and is not precedent except under the limited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. 04-11291
                               -2-

district court would have imposed the same sentence if it had

been operating under an advisory guidelines system.     See United

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

     Our review of the record convinces us that the error in this

case cannot be considered harmless.   Although the district court

sentenced Ball at the top of the guideline range authorized by

the then-mandatory guidelines range, that fact is insufficient,

standing alone, to satisfy the Government’s burden.     See United

States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).    The

district court’s comments about the seriousness of Ball’s offense

and the impact of his offense shed no additional light on what

the court would have done if the Guidelines had been advisory;

they may simply reflect why the court believed the sentence was

appropriate within the mandatory guidelines framework.    Cf.

United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1444 (2006).

     Ball has abandoned on appeal his challenge to the district

court’s calculation of his criminal history score.    See United

States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.

1991).

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
