                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 3, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40019
                         Summary Calendar



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

MARIO ROMERO-FLORES,

                                              Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
           for the Southern District of Texas, Laredo
                    USDC No. 5:04-CR-1430-ALL
                       --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Mario Romero-Flores appeals the sentence

imposed following his jury-trial conviction on two counts of

smuggling aliens for financial gain. He contends that the district

court committed error under United States v. Booker, 542 U.S. 220

(2005), when it sentenced him based on judicial fact-findings made

in violation of his rights under the Sixth Amendment.          He also



     *
       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this opinion should not be published and is not precedent except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.
contends    that   the    district   court    misapplied   the    Sentencing

Guidelines in calculating his sentence and that the court erred by

imposing his sentence under the misapprehension that the Sentencing

Guidelines were mandatory.

     Romero-Flores is correct that the district court committed

Sixth Amendment error under Booker when it enhanced his sentence

based on factual determinations that he did not admit and that the

jury did not find beyond a reasonable doubt.          Additionally, as the

government acknowledges, Romero-Flores preserved this issue by

objecting to the sentence enhancement on Sixth Amendment grounds.

See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).

When, as here, a Booker error has been preserved in the district

court, we “will ordinarily vacate the sentence and remand, unless

[this court] 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

citation omitted).        The government concedes that it cannot show

harmlessness in this case.       The government cannot, therefore, meet

its “arduous” burden of demonstrating “beyond a reasonable doubt

that the Sixth Amendment Booker error did not affect the sentence

that [Romero-Flores] received.”       Pineiro, 410 F.3d at 285, 287. As

we must remand this case for resentencing, we need not address



                                      2
Romero-Flores’s    other   arguments     concerning   the   sentence

enhancement.

     Romero-Flores also challenges the condition of his supervised

release requiring that he cooperate with the probation officer in

the collection of a DNA sample.       This is not ripe for review on

direct appeal.     United States v. Riascos-Cuenu, 428 F.3d 1100,

1101-02 (5th Cir. 2005), petition for cert. filed, (U.S. Jan. 9,

2006)(No. 8662).    Accordingly, we lack appellate jurisdiction to

consider this isue.

SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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