                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                         May 26, 2005

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                  No. 04-40903
                                Summary Calendar


UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,
versus


EMMANUEL KARRIEM SHABAZZ,

                                                        Defendant-Appellant.

                           --------------------
              Appeal from the United States District Court
                    for the Eastern District of Texas
                       USDC No. 1:03-CR-202-ALL-RC
                           --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Emmanuel Karriem Shabazz pleaded guilty to

possession with intent to distribute methamphetamine, a violation

of 21 U.S.C. § 841(a)(1).            He was sentenced to 135 months of

imprisonment and five years of supervised release.                  Shabazz now

appeals, challenging only his sentence.

     Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Shabazz

argues that the district court erred when it enhanced his offense

level    by   two    pursuant   to   U.S.S.G.   §   2D1.1(b)(1)     based    on    a

preponderance finding that Shabazz possessed a weapon in connection

     *
       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this opinion should not be published and is not precedent except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.
with the offense.    In light of the Supreme Court’s recent decision

in United States v. Booker, 125 S. Ct. 738, 756 (2005), the

judicially determined enhancement, made under a mandatory guideline

regime, violated Shabazz’s Sixth Amendment right to a trial by

jury.

     When, 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,

511, 520 n.9 (5th Cir. 2005).        We conclude that, were we to review

Shabazz’s sentence for harmless error, we would hold that 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 imposed.              See United States v.

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

14, 2005).   Accordingly, we vacate Shabazz’s sentence and remand

for resentencing.    See id.

SENTENCE VACATED; REMANDED FOR RESENTENCING.




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