                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41289
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SHAWN TRAVIS JONES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                  USDC No. 1:03-CR-175-TH-ESH-2
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Shawn Travis Jones appeals his sentence following his guilty

plea conviction for carjacking.   He argues that, in light of

United States v. Booker, 543 U.S. 220 (2005), his sentence must

be vacated because it was based on judicial fact-findings made in

violation of the Sixth Amendment.   Specifically, Jones challenges

the enhancements to his sentence for brandishing a firearm and

abducting his victims.   He also challenges the district court’s

denial of a reduction to his sentence for being a minor


     *
       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this opinion should not be published and is not precedent except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. 04-41289
                                 -2-

participant.    As the Government has not invoked the waiver

provision in the plea agreement, the waiver is not binding on

Jones.   See United States v. Story, 439 F.3d 226, 230-31 (5th

Cir. 2006).

     The finding by the district court that Jones could have

“reasonably foreseen” that his co-defendant would brandish a

firearm during the carjacking was necessary to support the

enhancement to Jones’s sentence.    See United States v. Burton,

126 F.3d 666, 679 & n.23 (5th Cir. 1997).    Since Jones never

admitted the fact that it was “reasonably foreseeable” to him

that his co-defendant would brandish a firearm during the

carjacking, the enhancement violated the Sixth Amendment.      See

Booker, 543 U.S. at 244.    The Government concedes that Jones

preserved this error for appeal.    The Government, however, has

not shown beyond a reasonable doubt that the error was harmless.

See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir.

2005).   Accordingly, Jones’s sentence is vacated, and this case

is remanded for resentencing.    Because we remand for resentencing

based on the brandishing of a firearm enhancement, we do not

reach Jones’s arguments with respect to the enhancement for

abducting his victims and the denial of a reduction for being a

minor participant.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
