                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 18, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-20013
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

KEMPSHA LARTHA WILSON,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-248-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kempsha Lartha Wilson appeals his guilty-plea conviction and

sentence for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922 and 924.

     Wilson 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), his Sixth Amendment rights were

violated when the district court increased his offense-level on




     *
       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this opinion should not be published and is not precedent except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. 05-20013
                                -2-

ground that Wilson possessed the firearm in connection with

another felony, delivery of marijuana.

     Where, as here, a claim of error under United States v.

Booker, 125 S. Ct. 738 (2005), “is preserved in the district

court, we will ordinarily vacate the sentence and remand, unless

we 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) (quotation marks omitted).    The

Government must show “that the district court would have imposed

the same sentence absent the error.”     Id. at 285.

     The district court sentenced Wilson to the top of his

guidelines range, but this factor is not conclusive to show that

any error was harmless.   Cf. United States v. Rodriguez-Gutierrez,

428 F.3d 201, 206-06 (5th Cir. 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 scheme).    Although the district court also

found the sentence to be “appropriate” to meet the sentencing

objectives of punishment and deterrence, the record contains no

other indication by the district court that it would have imposed

the same sentence absent Booker error.    The Government thus cannot

meet its burden.

     Wilson contends that 18 U.S.C. § 922(g)(1) is

unconstitutional because it does not require that the firearm in
                            No. 05-20013
                                 -3-

question have a “substantial” effect on interstate commerce.   He

also contends that the mere movement of the firearm in interstate

commerce prior to his possession of the firearm does not establish

a sufficient nexus with interstate commerce.

     As Wilson concedes, the constitutionality § 922(g) is not

open to question.    United States v. Daugherty, 264 F.3d 513, 518

(5th Cir. 2001).    Moreover, evidence similar to that presented in

Wilson’s case is sufficient to maintain a conviction under

§ 922(g)(1).    See id. at 518 & n.12 (discussing decisions in which

firearms were possessed in Texas but manufactured elsewhere); see

also United States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002)

(noting that “evidence that a firearm has traveled interstate at

some point in the past is sufficient to support a conviction under

§ 922(g), even if the defendant possessed the firearm entirely

intrastate”).

     Wilson’s conviction is AFFIRMED; his sentence is VACATED and

the case is REMANDED for resentencing.

     AFFIRMED IN PART, VACATED AND REMANDED IN PART.
