                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 22, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-21121
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EDUARDO AGUIRRE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:02-CR-36-2
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Eduardo Aguirre appeals from his sentence following his

guilty-plea conviction of aiding and abetting to possess with

intent to distribute 100 kilograms or more of marijuana.       Aguirre

argues that, under United States v. Booker, 125 S. Ct. 738

(2005), the district court clearly erred in increasing his

sentence by finding by a preponderance of the evidence that he

was responsible for an amount of marijuana beyond the 461

kilograms for which Aguirre admitted responsibility.


     *
       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this opinion should not be published and is not precedent except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. 03-21121
                                 -2-

      It is not necessary to consider Aguirre’s Booker argument

because, as the Government argues, Aguirre’s sentence should be

vacated and the matter remanded for resentencing based on our

holdings in four of Aguirre’s co-indictees’ appeals that the

district court clearly erred in basing its findings of drug

quantity on the statements of an informant who the Government had

identified as unreliable.   See United States v. Ayala, 107 Fed.

Appx. 410 (5th Cir. 2004)(unpublished); United States v. Trevino,

125 Fed. Appx. 549 (5th Cir. 2005)(unpublished).    There is no

reason to reach a different result in Aguirre’s case, and

Aguirre’s sentence is VACATED and the matter REMANDED remand for

further proceedings consistent with this opinion.    Because we

have vacated Aguirre’s sentence, we do not consider Aguirre’s

arguments pertaining to the denial of a reduction in his offense

level for acceptance of responsibility or that his sentence

should be reversed because the Government breached its plea

agreement.   We GRANT the appellee’s unopposed motion to seal the

appellee’s brief.

     SENTENCE VACATED AND THE MATTER REMANDED; MOTION TO SEAL

APPELLEE’S BRIEF GRANTED.
