                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                 May 20, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                         _____________________                     Clerk

                             No. 03-10615
                         _____________________



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

WALTER BRYAN ASHLOCK

                       Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                            (02-CR-243)
_________________________________________________________________

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and BARKSDALE, Circuit Judge.*

PER CURIAM:**

     Defendant Walter Bryan Ashlock argues that his conviction

and sentence should be vacated in light of United States v.

Booker, 125 S. Ct. 738 (2005), and the case remanded to the

     *
           Judge Pickering was a member of the original panel but
resigned from the Court on December 8, 2004 and therefore did not
participate in this decision. This matter is being decided by a
quorum. 28 U.S.C. § 46(d).
     **
          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that this opinion should not be published and is not precedent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.
district court.   According to Ashlock, the district court erred

when it enhanced his sentence under a mandatory sentencing regime

based on findings made by it, rather than by the jury.   Ashlock

additionally argues that the indictment that served as the basis

for his conviction was defective because it did not provide

notice of the alleged facts the district court found to enhance

his sentence.    Accordingly, Ashlock contends that, at a minimum,

this court should vacate his sentence and remand to the district

court for resentencing.

     The government agrees that this case should be remanded to

the district court for the purpose of resentencing.

Accordingly, IT IS ORDERED that the defendant’s conviction is

REINSTATED.   IT IS FURTHER ORDERED that the defendant’s sentence

is VACATED and this case is REMANDED to the United States

District Court for the Northern District of Texas for

resentencing.1




     1
        Ashlock only challenges the sufficiency of the
indictment insofar as it pertains to the facts used to enhance
his sentence. Because we vacate Ashlock’s sentence, his argument
that the indictment was defective fails. Additionally, we note,
contrary to Ashlock’s argument, that after Booker, the government
is not required to allege in the indictment facts that are not
elements of the offense, but that might nonetheless serve as the
basis of a sentencing enhancement. See Booker, 125 S. Ct. at
761-62, 764.

                                  2
