                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50785
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERT EDWARD BELL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 6:03-CR-254-2
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges

PER CURIAM:*

     Robert Edward Bell pleaded guilty to conspiracy to

manufacture methamphetamine and was sentenced to a 240-month term

of imprisonment and a three-year term of supervised release.         The

district court’s judgment imposed alternative sentences of 16

months of imprisonment and 5 years of imprisonment depending on

whether the Sentencing Guidelines were held to be

unconstitutional in whole or in part.   Bell now appeals,

challenging only his 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this opinion should not be published and is not precedent except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. 04-50785
                                -2-

     Bell contends, in reliance on Blakely v. Washington, 124

S. Ct. 2531 (2004), that the Sentencing Guidelines are

unconstitutional, and he challenges the district court’s

determination of the drug quantity attributable to him for

sentencing purposes and the two-level enhancement of his offense

level pursuant to U.S.S.G. § 2D1.1(b)(5)(A).    He also has filed a

supplemental letter brief challenging the validity of his 240-

month sentence and the district court’s mandatory application of

the Sentencing Guidelines in the light of the Supreme Court’s

recent decision in United States v. Booker, 125 S. Ct. 738

(2005).

     In the light of Booker, the judicially determined sentence

enhancements, made under a mandatory guidelines regime, violated

Bell’s Sixth Amendment rights.    Where, as here, a defendant has

preserved a Booker issue in the district court, “we will

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

error is harmless under Rule 52(a) of the Federal Rules of

Criminal Procedure.”   United States v. Mares, 402 F.3d 511, 520

n.9 (5th Cir. 2005), petition for cert. filed (U.S. Mar. 31,

2005) (No. 04-9517).   We conclude that, were we to review Bell’s

240-month sentence for harmless error, the Government has not met

its burden of demonstrating beyond a reasonable doubt that the

mandatory nature of the Guidelines did not contribute to the

sentence that Bell received.     See United States v. Akpan,

__F.3d__, No. 03-20875, 2005 WL 852416 at *12 (5th Cir. Apr. 14,
                             No. 04-50785
                                  -3-

2005).   Accordingly, we vacate Bell’s sentence and remand for

resentencing.

     Bell argues that this court should impose one of the two

alternative sentences set forth in the district court’s judgment

or order the district court to impose one of the alternative

sentences on remand.   “Even in the discretionary sentencing

system established by Booker/Fanfan, a sentencing court must

still carefully consider the detailed statutory scheme created by

the [Sentencing Reform Act] and the Guidelines, which are

designed to guide the judge toward a fair sentence while avoiding

serious sentence disparity.”    Mares, 402 F.3d 518-19.   The

district court did not have the benefit of Booker when imposing

the alternative sentences.    Accordingly, we vacate Bell’s

sentence in its entirety, including the alternative sentences set

forth in the judgment, and remand for resentencing.

     VACATED AND REMANDED FOR RESENTENCING.
