                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41543
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAVIER ZAMARRIPA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-995-ALL
                      --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Javier Zamarripa appeals his sentence of 18 months in prison

following his guilty-plea conviction for transporting an illegal

alien for profit, in violation of 8 U.S.C. § 1324.     The district

court arrived at Zamarripa’s sentence by applying the enhancement

at U.S.S.G. § 2L1.1(b)(5), after it found that Zamarripa

recklessly endangered illegal aliens by transporting them lying

down, covered with wood, in the bed of his truck.




     *
       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this opinion should not be published and is not precedent except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. 04-41543
                                  -2-

     Zamarripa challenged the enhancement, arguing that such

judicial fact-finding violated Blakely v. Washington, 124 S. Ct.

2531 (2004).    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)).

     After Zamarripa was sentenced, the Supreme Court issued its

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

applying its holding in Blakely to the Federal Sentencing

Guidelines.    Because the district court enhanced Zamarripa’s

sentence based on its factual determination, other than the fact

of a prior conviction, the district court committed error under

Booker.

     Zamarripa preserved his argument by raising it in the

district court.    Ordinarily, when a defendant presents a

preserved Booker issue, we vacate the sentence and remand, unless

the Government can demonstrate that the error was harmless beyond

a reasonable doubt.    United States v. Pineiro, ___ F.3d ___, 2005

WL 1189713, * 2 (5th Cir. May 20, 2005).    Here, the Government

has waived argument with respect to error.    Accordingly, the

Government cannot demonstrate harmless error, and Zamarripa’s

sentence must be vacated and remanded for resentencing.

     VACATED AND REMANDED.
