                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 27, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-51365
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO ESCOBAR-GAETA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. 3:04-CR-785-ALL-PRM
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges

PER CURIAM:*

     Having pleaded guilty, Alfredo Escobar-Gaeta appeals his

concurrent sentences for conspiracy to import more than 100

kilograms of marijuana, importation of more than 100 kilograms of

marijuana, conspiracy to possess with intent to distribute more

than 100 kilograms of marijuana, and possession with intent to

distribute more than 100 kilograms of marijuana.   Escobar-Gaeta

argues that the sentences violate United States v. Booker, 125 S.

Ct. 738 (2005).   We conclude that Escobar-Gaeta’s objections to


     *
       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this opinion should not be published and is not precedent except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. 04-51365
                                -2-

his sentence in the district court preserved his arguments for

appellate review.   United States v. Olis, 429 F.3d 540, 544 (5th

Cir. 2005); United States v. Akpan, 407 F.3d 360, 375-76 (5th

Cir. 2005).   When reviewing a Booker claim that has been

preserved, we will ordinarily vacate and remand unless the

Government can show beyond a reasonable doubt that the error was

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

Cir. 2005).

      The imposition of a sentence based on facts exceeding those

stipulated by Escobar-Gaeta when he pleaded guilty was erroneous.

Id.   The Government’s brief does not address the issue of

harmless error, and our review of the record reveals nothing to

suggest that the Booker error did not influence the district

court’s selection of a sentence.   See id.   Accordingly, Escobar-

Gaeta’s sentences are VACATED and this matter is REMANDED for

resentencing.
