                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41269
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEVE D. YOUNG,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                    USDC No. 4:04-CR-77-RAS-DDB
                        --------------------

Before Barksdale, Stewart, and Clement, Circuit Judges.

PER CURIAM:*

     Steve D. Young appeals his 18-month, guilty-plea sentence

for making, uttering and possessing a forged security, in

violation of 18 U.S.C. § 513(a).   Young argues that the

enhancement of his sentence for abuse of a position of trust

pursuant to U.S.S.G. § 3B1.3 contravenes the principles announced

by the Supreme Court in United States v. Booker, 543 U.S. 220

(2005).   As the Government has not invoked the waiver provision




     *
       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this opinion should not be published and is not precedent except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. 04-41269
                                   -2-

in Young’s plea agreement, the waiver is not binding on Young.

See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).

     Where, as in this case, a Booker error has been preserved in

the district court, “we will ordinarily vacate the sentence and

remand, unless we can say the error is harmless under Rule 52(a)

of the Federal Rules of Criminal Procedure.”      United States v.

Pineiro, 410 F.3d 282, 284 (5th Cir. 2005) (internal quotation

marks and citations omitted).

     Young admitted in his factual resume to facts sufficient to

prove that he abused a position of trust.      See U.S.S.G. § 3B1.3,

comment. n.1 (2003); United States v. Brown, 941 F.2d 1300, 1305

(5th Cir. 1991).      Because such admissions cannot form the basis

for a Booker claim, Young’s Booker claim fails.      See United

States v. Burke, 431 F.3d 883, 889 (5th Cir. 2005).

     Young also argues that his sentence should be vacated and

his case remanded for resentencing because his sentence was

imposed based on the mandatory application of the Sentencing

Guidelines.   We review his preserved Fanfan challenge for

harmless error.    See United States v. Walters, 418 F.3d 461,

463-64 (5th Cir. 2005).     The Government bears the burden of

proving beyond a reasonable doubt that the district court would

have imposed the same sentence had the Guidelines been advisory

only.   Id. at 464.

     The sentencing transcript is silent with regard to whether

the district court would have imposed the same sentence had the
                            No. 04-41269
                                 -3-

Guidelines been advisory.   The Government cannot meet its burden.

Accordingly, we vacate Young’s sentence and remand the case for

resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
