                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41575
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAMIEN DESHONG COUNCIL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 3:03-CR-6-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Damien Deshong Council appeals his conviction following a

jury trial and sentence for possession of a controlled substance

(“crack”) with the intent to distribute, possession of a firearm

by a felon, and using, carrying, or possessing a firearm during

and in relation to a drug-trafficking crime.   18 U.S.C.

§§ 922(g)(1), 924(c)(1); 21 U.S.C. § 841(a)(1).   Council

challenges the sufficiency of the evidence supporting his

convictions for possession of a firearm by a felon and for using,


     *
       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this opinion should not be published and is not precedent except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. 04-41575
                                 -2-

carrying, or possessing a firearm during and in relation to a

drug-trafficking crime.    We have determined that a rational trier

of fact could have found that the evidence established Council’s

guilt beyond a reasonable doubt as to both counts.    Jackson v.

Virginia, 443 U.S. 307, 319 (1979).   Thus, we AFFIRM Council’s

conviction as to these counts.

     Council argues that the district court enhanced his sentence

based on his career offender status in violation of the Sixth

Amendment.    We have held, however, that a judge’s determination

of career offender status does not implicate United States v.

Booker, 543 U.S. 220 (2005), because, except for the defendant’s

age, “[c]areer offender status is not ‘a sentencing judge’s

determination of a fact other than a prior conviction.’”      United

States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005), cert.

denied, ___S. Ct.___, 2006 WL 37646 (Jan. 9, 2006) (No. 05-7643).

The Government concedes, however, that it cannot meet its burden

of establishing beyond a reasonable doubt that the district

court’s error in sentencing Council pursuant to a mandatory

sentencing guidelines scheme, so-called “Fanfan” error, was

harmless.    See United States v. Walters, 418 F.3d 461, 464 (5th

Cir. 2005).   Therefore, Council’s sentence, which included

alternative sentences, is VACATED in its entirety and the case is

REMANDED for further proceedings consistent with Booker.
