                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       REVISED JUNE 29, 2005
               IN THE UNITED STATES COURT OF APPEALS          June 21, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 04-41352
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

ALAN SHELBY

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 1:03-CR-240-ALL
                       --------------------

Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

     Alan Shelby, a federal inmate, appeals his sentence

following his guilty plea to the offense of being an inmate in

possession of a prohibited object, to wit: heroin, in violation

of 18 U.S.C. § 1791(a)(2).    Shelby argues that his sentence must

be vacated in light of United States v. Booker, 125 S. Ct. 738

(2005).

     Booker, 125 S. Ct. at 756, held that "[a]ny fact (other than

a prior conviction) which is necessary to support a sentence

     *
       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this opinion should not be published and is not precedent except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. 04-41352
                                 -2-

exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt."        Booker

also struck down 18 U.S.C. § 3553(b)(1) and thus rendered the

Guidelines advisory only.   Id. at 764-65.

     The district court based Shelby’s sentence on its findings

that Shelby’s possession of heroin was for the purpose of

distribution within the prison, and it calculated his offense

level accordingly.   The district court also applied a sentencing

enhancement for obstruction of justice because Shelby escaped

from custody while awaiting sentencing in this case.     Shelby did

not admit these facts in the district court and objected to the

enhancements on Sixth Amendment grounds.     Shelby’s 57-month

sentence exceeded the maximum sentence that could have been

imposed based solely on his plea and constituted a Sixth

Amendment violation under Booker.     See Booker, 125 S. Ct. at 769.

     When, as here, the defendant has preserved his error, we

will ordinarily vacate the sentence and remand, unless we can say

that the error is harmless under FED. R. CRIM. P. 52(a).   See

United States v. Akpan, __ F.3d __, No. 03-20875, 2005 WL 852416

at *11 (5th Cir. Apr. 14, 2005).    Under this standard, the

Government bears the burden of demonstrating beyond a reasonable

doubt that the constitutional error did not contribute to the

defendant’s sentence.   Id. at *12.   Were we to review Shelby’s

sentence for harmless error, we would find that the error here
                              No. 04-41352
                                   -3-

was harmful.   Although the Government asserts that the error was

harmless, we cannot say beyond a reasonable doubt that the

mandatory nature of the Sentencing Guidelines at the time of

Shelby’s sentence did not contribute to the sentence that he

received.   See id. at *12.    Accordingly, Shelby’s sentence must

be vacated and remanded for resentencing.

     VACATED AND REMANDED.
