                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-20628
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Petitioner-Appellee,

versus

JUSTIN EVERETT YOUNG,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-443-1
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Justin Everett Young appeals his conviction and sentence on

one count of possession of cocaine with intent to distribute in

violation of 18 U.S.C. § 841(a), (b); one count of possession of a

firearm during a drug trafficking offense, a violation of 18 U.S.C.

§ 924(a)(2), (c)(1)(A); and one count of possession of a firearm by

a felon, a violation of 18 U.S.C. § 922(g)(1).   For the following

reasons, we affirm his convictions, but we vacate his sentence and

remand for resentencing.


     *
       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this opinion should not be published and is not precedent except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. 04-20628
                                      -2-

     In his first assignment of error, Young argues that the

application of U.S.S.G. § 3A1.2(b)(1), which provides for a three-

level    increase   if    the   defendant   assaulted   a   law   enforcement

officer, constituted Sixth Amendment error in light of United

States v. Booker, 543 U.S. 220 (2005).          We agree.      We reject the

Government’s argument that Young admitted the facts supporting the

enhancement and, therefore, there was no Sixth Amendment Booker

error.    Young made no statements admitting that he knew or had

reason to believe that the officer was a law enforcement officer.

To the contrary, he repeatedly denied such assertions.                As the

district court applied the § 3A1.2(b)(1) enhancement based on facts

that were neither admitted by Young nor found by a jury beyond a

reasonable doubt, the district court committed Sixth Amendment

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

2005).     Moreover, even absent the Sixth Amendment error, the

mandatory application of the Guidelines was “Fanfan” error, which

Young preserved.     See United States v. Rodriguez-Mesa,            F.3d    ,

No. 04-41757, 2006 WL 633280, at *5 (5th Cir. Mar. 15, 2006).

     We further conclude that the Government has failed to carry

its burden of demonstrating that the error was harmless beyond a

reasonable doubt.        See Pineiro, 410 F.3d at 286.      The imposition of

a sentence at the top of the applicable guidelines range, without

more, is insufficient to show that the district court would have

imposed the same sentence under an advisory guidelines regime.

United States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).               The
                                No. 04-20628
                                     -3-

fact that the district court imposed a consecutive sentence for

Young’s firearms conviction likewise sheds no light on this issue

as   the   district    court   was   required   by    statute     to    order   the

sentences     to      run   consecutively.           See   id.;        18   U.S.C.

§ 924(c)(1)(A)(i).

      Young’s challenges to 21 U.S.C. §§ 841(a) and (b) and to his

conviction for possession of a firearm by a felon under 18 U.S.C.

§ 922(g)(1) are foreclosed by circuit precedent. See United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); United States v.

Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v.

Gresham, 118 F.3d 258, 264-65 (5th Cir. 1997); United States v.

Kuban, 94 F.3d 971 (5th Cir. 1996).             Young concedes as much but

raises these arguments to preserve them for further review.

      For the foregoing reasons, we AFFIRM Young’s conviction, but

we VACATE his sentence and REMAND for resentencing.
