                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41059
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

RICKY BERNARD SMITH

                      Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 4:03-CR-183-ALL-PNB
                       --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Ricky Bernard Smith appeals from his guilty-plea conviction

for possession of stolen mail.    Smith argues that his sentence

should be vacated and remanded under United States v. Booker, 543

U.S. 220 (2005), because the district court erred by sentencing

him based on judicial fact-findings made in violation of his

rights under the Sixth Amendment.    Smith preserved this issue by

objecting to the sentence enhancement on Sixth Amendment grounds.

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


     *
       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this opinion should not be published and is not precedent except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. 04-41059
                                 -2-

     We cannot affirm the erroneous sentence unless the

Government shows that the error is harmless beyond a reasonable

doubt.    See United States v. Pineiro, 410 F.3d 282, 285-86 (5th

Cir. 2005).   We conclude that the Government has not met its

burden.    See United States v. Garza, 429 F.3d 165, 171 (5th Cir.

2005).    We therefore VACATE Smith’s sentence and REMAND for re-

sentencing.
