                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 7, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-40725
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOEL SALINAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-106-7
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Joel Salinas appeals his conviction and sentence of 168

months of imprisonment imposed after he pleaded guilty to

possession with intent to distribute “more than 5 kilograms of

cocaine, that is approximately 66 kilograms of cocaine.”        The

district court arrived at Salinas’s sentence after determining

that he possessed an equivalent of over 126,000 kilograms of

marijuana, a fact neither admitted by Salinas nor found by a jury

beyond a reasonable doubt.


     *
       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this opinion should not be published and is not precedent except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. 04-40725
                                 -2-

     After Salinas was sentenced, the Supreme Court issued its

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

applying its holding in Blakely v. Washington, 124 S. Ct. 2531

(2004), to the Federal Sentencing Guidelines.    Blakely reaffirmed

the rule that “‘[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt.’”   Blakely, 124 S. Ct. at 2536 (quoting

Apprendi v. New Jersey, 530 U.S. 466 (2000)).

     Salinas argues that his sentence violates Booker because the

court judicially determined the amount of drugs for which he was

responsible and upon which his sentence was based.   The district

court’s enhancement of Salinas’s sentence based on its factual

determination, other than the fact of a prior conviction, was

error under Booker.

     Because Salinas preserved this objection in the district

court, see United States v. Akpan, 407 F.3d 360, 376 (5th Cir.

2005), review is for harmless error.    United States v. Pineiro,

410 F.3d 282, 284 (5th Cir. 2005).   The Government bears the

burden of establishing, beyond a reasonable doubt, that the error

was harmless.   See id.   The Government has not met this burden.

Thus, we need not reach Salinas’s assertion of Fanfan error.

     Salinas also argues that 21 U.S.C. § 841 is facially

unconstitutional in light of Apprendi because the statute’s

structure treats drug types and quantities as sentencing factors.
                           No. 04-40725
                                -3-

Salinas concedes that his argument is foreclosed by United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but he raises

the issue in order to preserve it for possible Supreme Court

review.   Accordingly, Salinas’s conviction is AFFIRMED, but we

VACATE Salinas’s sentence, and REMAND for resentencing in light

of Booker.
