                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 17, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30834
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MICHAEL B. CHESSON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                   USDC No. 2:04-CR-20046-1-PM
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Michael B. Chesson appeals his guilty-plea sentence for

possession and pledge of a stolen firearm, in violation of 18

U.S.C. §§ 922(j) and 924(a)(2).

     Chesson renews his argument, preserved in the district

court, that in light of the Supreme Court’s decision in Blakely

v. Washington, 542 U.S. 296 (2004), the imposition of a two-level

enhancement for being a prohibited person pursuant to U.S.S.G.




     *
       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this opinion should not be published and is not precedent except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. 04-30834
                                 -2-

§ 2K2.1(a)(6)(A) was illegal because it was based on judicially

found facts and facts to which he did not admit.

     The Government responds that any error in treating the

sentencing guidelines as mandatory rather than advisory was

harmless because Chesson was sentenced to the maximum guideline

range, thereby indicating that it is highly unlikely that he

would have received a lesser sentence had the district court

treated the guidelines as advisory.

     Where, as here, an error under United States v. Booker, 125

S. Ct. 738 (2005), has been preserved in the district court, we

“will ordinarily vacate the sentence and remand, unless [this

court] can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.”      United States v. Pineiro,

410 F.3d 282, 284 (5th Cir. 2005) (internal quotation marks and

citation omitted.   “The government bears the burden of showing

that the error was harmless beyond a reasonable doubt.”     Pineiro,

410 F.3d at 284.    To meet this burden, the Government must show

that the Booker error did not affect the sentence that the

defendant received, i.e., it must show “that the district court

would have imposed the same sentence absent the error.”     Id.

     Without the prohibited-person enhancement, Chesson’s base

offense level would have been 12, and his total offense level

would have been 10 after a two-point downward adjustment for

acceptance of responsibility.   His resulting guideline

imprisonment range would have been 10 to 16 months as opposed to
                             No. 04-30834
                                  -3-

18 to 24 months.   As such, the district court’s sentencing error

contributed to his sentence, and he was prejudiced by the error

because the available sentencing range was increased beyond that

for which he would otherwise have been eligible.

     Contrary to the Government’s assertion, a sentence at the

high end of the guideline range alone does not conclusively prove

that the district court would have imposed the same sentence

absent a Booker error.   Cf. United States v. Rodriguez-Gutierrez,

   F.3d    , No. 04-30451, 2005 WL 2447908 at ** 2-3 (5th Cir.

Oct. 5, 2005) (holding, under a plain error standard of review,

that a sentence at the maximum end of the guidelines range is

strong but not conclusive evidence that the district court would

not have imposed a lesser sentence under an advisory guidelines

regime).   If a maximum guideline sentence must be received

“together with relevant statements by the sentencing judge” to

show plain error, see id. at *3, it follows that the surrounding

context must be examined to determine if any error is harmless

beyond a reasonable doubt.    Under the foregoing construct, the

error was not harmless beyond a reasonable because other than the

district court’s imposition of a sentence at the high end of the

guideline range, the record does not indicate that the district

court would have imposed the same sentence absent a Booker error.

The Government thus cannot meet its burden.

     Accordingly, Chesson’s sentence is VACATED and the case is

REMANDED for resentencing.
                        No. 04-30834
                             -4-

VACATED AND REMANDED.
