                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 17, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40165
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAYMOND RAY BARNES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-432-ALL
                      --------------------

Before GARWOOD, JONES and SMITH, Circuit Judges.

PER CURIAM:*

     Raymond Ray Barnes appeals his conviction and the sentence

he received after he pleaded guilty to possession of marijuana

with intent to distribute, in violation of 21 U.S.C. § 841.        He

seeks to challenge the constitutionality of 21 U.S.C. § 841(a)

and (b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

As Barnes concedes, his argument is foreclosed by United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).




     *
       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this opinion should not be published and is not precedent except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. 05-40165
                                 -2-

     Barnes also argues, for the first time on appeal, that the

district court erred by imposing a sentence pursuant to the

mandatory Sentencing Guidelines system held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).     Because the

district court erred in sentencing Barnes pursuant to a mandatory

Guidelines scheme, he meets the first two requirements for relief

under plain error review.   See United States v. Olano, 507 U.S.

725, 731-37 (1993); United States v. Valenzuela-Quevedo, 407 F.3d

728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).     The

Government concedes that Barnes can satisfy the third prong of

plain error by showing that the district court felt constrained

by the Sentencing Guidelines and most likely would have imposed a

lower sentence under an advisory Guidelines scheme.    The

Government also agrees that the sentence should be vacated and

the case should be remanded to the district court for

resentencing.   We find nothing in the record that disturbs the

Government’s representation.

     Accordingly, Barnes’s conviction under 21 U.S.C. § 841 is

AFFIRMED; his sentence, however, is VACATED, and the case is

REMANDED for further proceedings.

     AFFIRMED IN PART; VACATED IN PART; REMANDED.
