                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 04-50157
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-03-00700-JTM
O. STEPHEN LYONS,
                                                  OPINION
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Southern District of California
          Jeffrey T. Miller, District Judge, Presiding

                  Submitted February 8, 2006*
                     Pasadena, California

                        Filed July 19, 2006

      Before: Robert R. Beezer, Thomas G. Nelson, and
              Ronald M. Gould, Circuit Judges.

                     Opinion by Judge Gould




  *This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                7937
7940                  UNITED STATES v. LYONS


                             COUNSEL

John Lanahan, San Diego, California, for the defendant-
appellant.

Melanie K. Pierson, Assistant U.S. Attorney, San Diego, Cali-
fornia, for the plaintiff-appellee United States of America.


                             OPINION

GOULD, Circuit Judge:

  Stephen Lyons appeals his conviction and sentence,
imposed by the district court upon a jury verdict finding him
guilty of mail fraud, in violation of 18 U.S.C. § 1341. We
have jurisdiction under 28 U.S.C. § 1291. We affirm Lyons’s
conviction, vacate his sentence, and remand for resentencing.

                                   I

   In July 2003, a federal grand jury charged Lyons with ten
counts of mail fraud. The indictment alleged that Lyons sold
fraudulent celebrity memorabilia bearing “counterfeit signa-
tures of various personalities, including Arnold Schwarzeneg-
ger, Jerry Garcia, Muhammad Ali, Sara Michelle Geller [sic],
Teri Hatcher, Carmen Electra, and others.” The fifth count of
the indictment alleged that Lyons mailed four movie posters,1




  1
   The posters advertised the movies: Toy Story (Pixar Animation Studios
1995); Braveheart (Paramount Pictures 1995); Natural Born Killers (War-
ner Bros. Pictures 1994), and Villa Rides (Paramount Pictures 1968).
                    UNITED STATES v. LYONS                 7941
each bearing counterfeit signatures, to an address belonging to
Richard Mitchell, a cooperating defendant and government
informant.

   Mitchell had contacted Lyons on the government’s behalf,
posing as a memorabilia wholesaler who wanted to buy fraud-
ulent memorabilia from Lyons. Mitchell and Lyons communi-
cated primarily by telephone, and Mitchell recorded several
conversations with Lyons. At trial the government introduced
transcripts of these conversations into evidence. During one
of the conversations, recorded on July 30, 2001, Lyons agreed
to accept “a small order of movie posters” from Mitchell for
“a couple hundred bucks.” Earlier in the conversation, refer-
ring to the movie posters, Mitchell told Lyons: “[T]hese, these
posters I have going to a, to a guy.”

   At trial Mitchell testified that he sent Lyons a package on
August 2, 2001, containing four unsigned movie posters, $200
in cash, and a note that read “Steve, sorry for the small order.
Next time I’ll make it worth your time. I only need eight sig-
natures at $25 each.” Mitchell further testified that he spoke
to Lyons by telephone on August 13, 2001, and that during
this conversation Lyons wanted to know whether Yul Bryn-
ner, who portrayed Pancho Villa in Villa Rides, was alive and,
if not, when he had died. According to Mitchell’s testimony,
Lyons explained that he was trying to determine whether
Brynner died before Sharpie magic markers were sold so
Lyons could choose the type of pen with which to forge Bryn-
ner’s signature on the Villa Rides poster. Mitchell told Lyons
that “if he signed it in ball point pen, we shouldn’t have any
problems.” Mitchell testified that he spoke to Lyons again on
August 14, 2001, after Mitchell received the fraudulently-
signed posters from Lyons, and that in this conversation
Mitchell told Lyons that the poster bearing the forged signa-
ture of Yul Brynner had sold for $700. The jury found Lyons
guilty on count five, as well as the other nine counts alleged
in the indictment. After the jury returned its verdict, Lyons
7942                UNITED STATES v. LYONS
moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29. The district court denied the motion.

   Before his sentencing hearing, Lyons filed written objec-
tions to the presentence report, in which he argued that the
Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), prohibited the district court’s use of judi-
cially determined facts to increase the severity of his sentence.
Lyons’s counsel so argued at the sentencing hearing, asserting
that Apprendi required a jury, and not the district court, to
determine the amount of loss caused by Lyons’s crimes for
purposes of sentencing. Notwithstanding, the district court
enhanced Lyons’s sentence based on facts that the govern-
ment had not presented to the jury.

   If the district court had considered only facts proven to the
jury, it could have imposed a maximum sentence of six
months. See U.S. Sentencing Guidelines Manual § 2B1.1(a)
(2001). But the district court imposed a ten-level upward
adjustment under Guideline § 2B1.1(b)(1)(F) because it con-
cluded that the amount of loss caused by Lyons’s crimes was
greater than $120,000. The district court also imposed a four-
level upward adjustment under Guideline § 2B1.1(b)(2)(B)
because it determined that Lyons’s crimes affected more than
fifty persons. The district court sentenced Lyons to a thirty-six
month term of imprisonment to be followed by a three-year
term of supervised release.

                               II

   Lyons raises two issues on appeal. First, he contends that
the evidence presented at trial was insufficient to warrant the
jury’s verdict on count five. Second, Lyons argues that the
sentence imposed by the district court violated his right to a
trial by jury because the district court enhanced his sentence
based on facts that the government did not prove to a jury
beyond a reasonable doubt.
                    UNITED STATES v. LYONS                  7943
                               A

  We first address Lyons’s claim that the government’s evi-
dence was insufficient to warrant the jury’s verdict. Because
Lyons preserved his sufficiency claim by moving for a judg-
ment of acquittal, we review his claim de novo. See United
States v. Carranza, 289 F.3d 634, 641 (9th Cir. 2002).

   [1] The evidence against Lyons was sufficient to warrant
the jury’s verdict if, “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). To convict Lyons of mail fraud under 18 U.S.C.
§ 1341, the government had to prove that Lyons: “(1) partici-
pated in a scheme with the intent to defraud, and (2) the
scheme used or caused the use of the mails in furtherance of
the scheme.” United States v. Montgomery, 384 F.3d 1050,
1063 (9th Cir. 2004) (quoting United States v. Johnson, 297
F.3d 845, 870 (9th Cir. 2002)).

   Lyons contends that the government’s evidence was insuf-
ficient to warrant the jury’s verdict on the fifth count of the
indictment because no rational jury could have concluded
beyond a reasonable doubt that Lyons acted with intent to
defraud. Lyons asserts that there was insufficient evidence
presented that the posters Lyons fraudulently signed and sent
to Mitchell would be resold as genuine celebrity memorabilia.
We disagree.

   [2] The evidence presented at trial was sufficient to warrant
a rational jury’s conclusion that Lyons knew Mitchell would
resell the fraudulent posters, and that Lyons acted with the
requisite intent. Mitchell testified that he presented himself to
Lyons as a memorabilia wholesaler who was interested in
purchasing fraudulent memorabilia from Lyons. The tran-
script of a phone conversation between Mitchell and Lyons
showed that Lyons agreed to receive a small number of movie
7944                UNITED STATES v. LYONS
posters from Mitchell and to be paid “a couple hundred
bucks” for signing them. Earlier in this conversation, Mitchell
told Lyons the posters were “going to . . . a guy.” Mitchell
testified that he sent Lyons four unsigned movie posters, each
to be signed twice, $200 in cash, and a note that read: “Steve,
sorry for the small order. Next time I’ll make it worth your
time. I only need eight signatures at $25 each.” Mitchell testi-
fied that he and Lyons decided to use a ball point pen rather
than a Sharpie to sign a poster depicting Yul Brynner to make
the forged signature appear authentic. Lyons sent the posters
back to Mitchell after forging two celebrity signatures on each
poster. After Mitchell received the posters he told Lyons that
the Villa Rides poster bearing the counterfeit Yul Brynner sig-
nature had been sold for $700.

   [3] While a rational jury viewing this evidence might have
accepted Lyons’s argument that he mailed the posters to
Mitchell unaware that he planned to resell them, the jury cer-
tainly was not required to do so. As we have said previously,
“[i]t is the jury’s duty to weigh the evidence and determine
what version of the facts to believe.” United States v. Toomey,
764 F.2d 678, 681 (9th Cir. 1985). Here, the jury was entitled
to reject Lyons’s assertion that he did not know that Mitchell
would resell the posters as authentic celebrity memorabilia.
Viewing the evidence in the light most favorable to the gov-
ernment, we hold that there was sufficient evidence for a
rational jury to conclude beyond a reasonable doubt that
Lyons sent Mitchell several posters bearing forged celebrity
signatures fully aware that he would sell the posters as though
they were genuine.

                               B

   We next address Lyons’s claim that the sentence imposed
by the district court violated his right to a trial by jury, pro-
tected by the Sixth Amendment. Because Lyons objected to
his sentence on Sixth Amendment grounds before the district
court, we review his sentence for harmless error. United
                     UNITED STATES v. LYONS                    7945
States v. Beng-Salazar, ___ F.3d ___, ___, 2006 WL
1843394, at *6 (9th Cir. July 6, 2006); United States v.
Hagege, 437 F.3d 943, 959 (9th Cir. 2006); see also Washing-
ton v. Recuenco, ___ S.Ct. ___, ___, 2006 WL 1725561, at *7
(June 26, 2006) (holding that a state court’s “[f]ailure to sub-
mit a sentencing factor to the jury . . . is not structural error”);
United States v. Kortgaard, 425 F.3d 602, 610-11 (9th Cir.
2005) (remanding an appeal involving a preserved Sixth
Amendment error for resentencing in light of Booker).

   As the Supreme Court has said, “before a federal constitu-
tional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable
doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). The
government bears the burden of proving that the district
court’s error was “harmless.” See Beng-Salazar, ___ F.3d at
___, 2006 WL 1843394, at *7.

   Lyons argues that his sentence is invalid under the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220
(2005), because the district court considered the sentencing
guidelines to be mandatory and because the district court
relied on judicially determined facts to enhance his sentence.
The government concedes that the district court considered
the sentencing guidelines to be mandatory, and that the sen-
tence imposed by the district court violated the Sixth Amend-
ment. But the government argues that the district court’s error
was harmless beyond a reasonable doubt because, in its view,
the district court would have imposed the same sentence in
light of the “overwhelming and uncontroverted” evidence that
Lyons’s crimes caused more than $120,000 in loss and
affected more than fifty persons.

  [4] Under Booker, a district court’s use of judicially-
determined facts to enhance a defendant’s sentence does not
violate the Sixth Amendment if the district court treats the
Sentencing Guidelines as advisory rather than mandatory. See
Booker, 543 U.S. at 233; Hagege, 437 F.3d at 959. In the con-
7946                UNITED STATES v. LYONS
text of a preserved Sixth Amendment challenge to a sentence
enhanced by judicially-determined facts, we must remand for
resentencing unless the government demonstrates that the dis-
trict court would have imposed the same sentence under advi-
sory sentencing guidelines as it did under mandatory
guidelines. See Chapman, 386 U.S. at 24; Beng-Salazar, ___
F.3d at ___, 2006 WL 1843394, at *7.

   [5] The record does not show that the district court would
have imposed the same sentence under an advisory guidelines
system. Even if the government is correct that the evidence
supporting the district court’s decision to depart upwards is
“overwhelming and uncontroverted,” the record does not indi-
cate that the district court would have departed upward to the
same degree if free to weigh the evidence at its discretion.
Likewise, the district court’s decision to impose a sentence in
the middle of the range permitted under the mandatory guide-
lines does not prove that the district court would have decided
to adjust Lyons’s sentence upwards by fourteen levels if the
district court had been free not to do so. See Beng-Salazar,
___ F.3d at ___, 2006 WL 1843394, at *8 n.6 (“That Beng
was sentenced to a mid-range Guideline sentence does not
affect our analysis.”).

   [6] We hold that the sentence imposed by the district court
violated the Sixth Amendment under the Supreme Court’s
decision in Booker, which prohibited the use of judicially-
determined facts to enhance a sentence under a mandatory
Guidelines regime, and that the government has not shown
that the district court’s error was harmless beyond a reason-
able doubt. We vacate Lyons’s sentence and remand for
resentencing in light of Booker. See Beng-Salazar, ___ F.3d
at ___, 2006 WL 1843394, at *7-8; Hagege, 437 F.3d at 959;
Kortgaard, 452 F.3d at 611.

 CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.
