                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 5, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-10886
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus


ANTHONY WAYNE SYAS,

                                     Defendant-Appellant.

                        --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                      USDC No. 4:03-277-ALL-A
                        --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Anthony Wayne Syas was convicted of one charge of possession

of stolen mail and sentenced to serve 24 months in prison and a

three-year term of supervised release.   Syas now appeals his

sentence, which he contends must be vacated in light of United

States v. Booker, 543 U.S. 220 (2005).    When, as here, a Booker

claim is preserved, we will ordinarily vacate and remand unless

the Government can show beyond a reasonable doubt that the error

was harmless.    See United States v. Pineiro, 410 F.3d 282, 285

     *
       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this opinion should not be published and is not precedent except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. 04-10886
                                    -2-

(5th Cir. 2005).     The district court erred by basing Syas’s

sentence on facts concerning the amount of loss incurred in

connection with Syas’s offense that were neither found by a jury

nor admitted by him.      See id. at 285-86.     Further, this error is

not harmless.    See id.; see also United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).

Consequently, Syas’s sentence is VACATED, and the case is

REMANDED FOR RESENTENCING.

     This remedy does indeed present an unusual situation: the

district court must impose a new sentence, which includes a term

of imprisonment, but Syas has completed that part of his

sentence; thus, even if the district court decides to impose a

lesser sentence, which it is authorized to do, it will have no

effect on prison time to be served.        Thus, the only practical

relief available on remand is that provided in 18 U.S.C. §

3583(e), a decision committed to the discretion and good judgment

of the district court.1

     SENTENCE VACATED; REMANDED FOR RESENTENCING.




     1
       Because resentencing is warranted, there is no need to address Syas’s
remaining sentencing claim. See United States v. Akpan, 407 F.3d 360, 377 n.2
(5th Cir. 2005).
