                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           JUNE 29, 2005
                            No. 04-15162                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D.C. Docket No. 04-20216-CR-CMA

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

RICARDO NATHANILIAN JOHNSON-CUERVO,

                                                    Defendant-Appellant.

                     __________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________


                            (June 29, 2005)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Ricardo Nathanilian Johnson-Cuervo appeals his concurrent sentences for

importation of morphine, 21 U.S.C. §§ 952(a) and 960(b)(3), and possession with

intent to distribute morphine, 21 U.S.C. § 841(a)(1) and (b)(1)(C), contending the

use of an unproven and unadmitted drug quantity to impose sentences under a

mandatory Guidelines scheme violated his Sixth Amendment rights, as set forth in

United States v. Booker, 125 S. Ct. 738 (2005).

      Because Johnson-Cuervo preserved a Blakely/Booker objection in the

district court, we review the challenge to his sentence de novo. United States v.

Paz, 405 F.3d 946, 948 (11th Cir. 2005). Booker error must be disregarded if it

was harmless. Id. To find harmless error, we must determine the error did not

affect the defendant’s substantial rights. A constitutional error, such as Booker

error, does not affect substantial rights, if it is harmless beyond a reasonable

doubt. Id. This standard is met only where it is clear beyond a reasonable doubt

the error did not contribute to the sentence obtained. The government has the

burden of showing the error did not affect the defendant’s substantial rights. Id.

      The Government has not attempted to carry its burden of showing the error

was harmless. Instead, the Government concedes error and joins Johnson-Cuervo




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in requesting a remand for resentencing. Accordingly, we vacate Johnson-

Cuervo’s sentences and remand for resentencing.

      VACATED AND REMANDED.




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