                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 5, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20953
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ERIC LEE EVANS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-29-ALL
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Eric Lee Evans appeals the sentence imposed following his

guilty-plea conviction for possession of a firearm by a convicted

felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Evans argues that, in light of United States v. Booker, 125

S. Ct. 738 (2005), the district court erred in sentencing him

under a mandatory guidelines system and in sentencing him based

upon facts that were not admitted by him or found by a jury.




     *
       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this opinion should not be published and is not precedent except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. 04-20953
                                -2-

     The two-level adjustment to Evans’s sentence pursuant to

U.S.S.G. § 2K2.1(b)(4) violated his Sixth Amendment right to a

trial by jury, and the Government has not carried its burden of

demonstrating that the error was harmless.     See United States v.

Pineiro, 410 F.3d 282, 286 (5th Cir. 2005); United States v.

Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005).    Accordingly,

Evans’s sentence is VACATED, and the case is REMANDED FOR

RESENTENCING.   Because it is necessary to vacate Evans’s sentence

based upon the Sixth Amendment Booker error, we do not address

Evans’s argument that his sentencing pursuant to a mandatory

guidelines scheme constitutes reversible error.     See Akpan, 407

F.3d at 377 n.62.

     VACATED AND REMANDED FOR RESENTENCING.
