                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 18, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-10005
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GREGORY HICKS,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CR-336-3
                      --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Gregory Hicks was indicted on one count of conspiring to

manufacture and distribute 50 grams or more of a mixture and

substance containing a detectable amount of methamphetamine.           He

was then charged by superseding information with one count of

conspiring to manufacture and distribute an unspecified quantity

of a mixture and substance containing a detectable amount of

methamphetamine.




     *
       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this opinion should not be published and is not precedent except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. 05-10005
                                 -2-

     Hicks first pleaded guilty, pursuant to an agreement, to the

superseding information.    The district court rejected the plea

agreement, but Hicks persisted in his guilty plea.    Hicks

subsequently pleaded guilty to the indictment.

     Hicks then moved to withdraw his guilty pleas.    The district

court denied his motion.    Hicks was sentenced to a 240-month term

of imprisonment on the offense charged in the information and to

a concurrent 288-month term on the offense charged in the

indictment.   He appeals.

     Hicks first argues that the district court’s denial of his

motion to withdraw his guilty pleas was an abuse of discretion.

This court accords broad discretion to the district court's

decision regarding a motion to withdraw and will reverse such a

decision only for an abuse of that discretion.    United States v.

Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).    The totality of the

circumstances in this case indicates that Hicks has failed to

demonstrate a fair and just reason for withdrawing his guilty

plea.   See id.

     Hicks argues that his prosecution on the indictment,

subsequent to his guilty plea to the superseding information,

violated the Double Jeopardy Clause.    The Government contends

that there was no double jeopardy violation in the continued

prosecution of Hicks, but it concedes that the Double Jeopardy

Clause was violated because Hicks has received multiple

punishments for the same offense.
                           No. 05-10005
                                -3-

     The continued prosecution of Hicks, subsequent to his guilty

plea to the superseding information, did not violate the Double

Jeopardy Clause.   See Ohio v. Johnson, 467 U.S. 493, 501 (1984).

“Notwithstanding the trial court’s acceptance of respondent’s

guilty pleas, respondent should not be entitled to use the Double

Jeopardy Clause as a sword to prevent the State from completing

its prosecution on the remaining charges.”   Id.   Hicks’s double

jeopardy argument lacks merit.

     However, as the Government concedes, the imposition of

multiple punishments for the same offense violated the protection

against double jeopardy.   See Monge v. California, 524 U.S. 721,

727-28 (1998); United States v. Corona, 108 F.3d 565, 571-72 (5th

Cir. 1997).   Accordingly, we will AFFIRM the convictions, VACATE

the sentences, and REMAND to the district court so that the

Government may elect the count to be dismissed.    See Corona, 108

F.3d at 574 (“When we find duplicative sentences, we vacate the

offending sentences and remand with instructions that the

government may elect which counts to dismiss in order to bring

the sentences into compliance.”)

     Hicks also argues that he is entitled to resentencing under

United States v. Booker, 125 S. Ct. 738 (2005).    The Government

concedes that Hicks preserved the Booker issue by objecting to

his sentence under Blakely v. Washington, 542 U.S. 296 (2004),

but it argues that the district court’s error was harmless given
                          No. 05-10005
                               -4-

that the district court rejected the plea agreement and imposed a

288-month sentence from a sentencing range of 262-327 months.

     When the district court imposes a sentence that is

“somewhere in the middle of the range provided by the

Guidelines,” this “does not tell us much about whether the

sentencing judge would have imposed a lesser sentence” if

sentencing under advisory guidelines.    United States v.

Rodriguez-Gutierrez,     F.3d     , No. 04-30451, 2005 WL 2447908,

*2 (5th Cir. Oct. 5, 2005).   Because the Government has not met

its burden of showing beyond a reasonable doubt that the error

was harmless, we will REMAND for resentencing.    See United States

v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).

     Because the case must be remanded, we do not address Hicks’s

contention that the district clearly erred by enhancing his

sentence for possession of a firearm.    See United States v.

Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

     CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED.
