                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 22, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41061
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

SEALED DEFENDANT 3,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 4:02-CR-74-3-PB-DDB
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Sealed Defendant 3 (Defendant) appeals the sentence that she

received after she pleaded guilty to conspiracy to possess with

intent to distribute one kilogram or more of heroin and five or

more kilograms of cocaine.   Defendant argues that the sentence

imposed must be remanded under Blakely v. Washington, 542 U.S.

296 (2004), and United States v. Booker, 543 U.S. 220 (2005),

because the district court deemed the Guidelines mandatory.

Because the Government does not address Defendant’s appeal




     *
       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this opinion should not be published and is not precedent except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. 04-41061
                                 -2-

waiver, it has waived its right to enforce it.    See United States

v. Lang, 440 F.3d 212, 213 (5th Cir. 2006).

     Regardless whether the error Defendant has identified is

characterized as a Booker or Fanfan error**, Defendant preserved

that error by raising a Blakely objection in the district court.

See United States v. Rodriguez-Mesa, ___ F.3d ___, No. 04-41757,

2006 WL 633280 at *5 (5th Cir. Mar. 15, 2006).   When a preserved

Booker or Fanfan error is presented, as here, this court looks to

whether the Government has met its burden to show harmless error

beyond a reasonable doubt in the imposition of the defendant’s

sentence.   Id.   Based on the record before the court, this court

cannot determine what the district court would have done absent

the mandatory Guidelines.   Therefore, the Government has not met

its burden of proving that the Booker or Fanfan error was

harmless beyond a reasonable doubt.

     Defendant’s argument that the Ex Post Facto and Due Process

Clauses prohibit the district court from applying Booker’s

remedial opinion to her case was squarely rejected by this court

in United States v. Charon, ___ F.3d ___, No. 05-10360, 2006 WL

574274 at *9 (5th Cir. March 10, 2006).




     **
        See United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir.) (referring to Ducan Fanfan, the second defendant in
the consolidated opinion in Booker, who did not experience Sixth
Amendment error), cert. denied, 126 S. Ct. 464 (2005); see also
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)
(discussing the difference between Booker and Fanfan error).
                           No. 04-41061
                                -3-

     Defendant’s sentence is VACATED, and the case is REMANDED

for further proceedings.
