                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        February 6, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 04-40966
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE GUADALUPE ROCHA-MARTINEZ,

                                           Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 5:04-CR-194-1
                        --------------------



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

      Jose Rocha-Martinez appeals the sentence imposed following his

guilty-plea conviction of transporting an illegal alien for commer-

cial advantage or private financial gain.           He argues that the dis-

trict court committed reversible error under United States v.

Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a man-



      *
        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should not be published and is not precedent except under the limited circum
stances set forth in 5TH CIR. R. 47.5.4.
datory application of the guidelines.   As the government concedes,

Rocha preserved this issue for review by objecting in the district

court based on Blakely v. Washington, 542 U.S. 296 (2004).      See

United States v. Walters, 418 F.3d 461, 462-63 (5th Cir. 2005).

Accordingly, the question “is whether the government has met its

burden to show harmless error beyond a reasonable doubt.”    Id. at

464.

       The district court erred by sentencing Rocha under the mis-

taken belief that the guidelines were mandatory. See United States

v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005).   The court sentenced Rocha in the middle of

the guidelines range and did not state what sentence it would im-

pose if the guidelines were held unconstitutional.    In these cir-

cumstances, the government has not met its “arduous burden” of

showing that the error was harmless.    United States v. Garza, 429

F.3d 165, 170 (5th Cir. 2005) (internal quotation marks omitted).

Accordingly, we vacate the sentence and remand for resentencing.

We do not reach Rocha’s alternative argument that the district

court committed a Sixth Amendment violation.   See United States v.

Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

       SENTENCE VACATED; REMANDED FOR RESENTENCING.
