                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 30, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50921
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL ANTONIO MATA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 7:04-CR-67-3
                       --------------------

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Manuel Antonio Mata appeals the sentence he received

following his guilty-plea conviction for distributing heroin

within 1,000 feet of a school, in violation of 21 U.S.C.

§§ 841(a)(1) and 860; for using a firearm in connection with a

drug-trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1); for being an unlawful user of a controlled substance

in possession of a firearm, in violation of 21 U.S.C.




     *
       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this opinion should not be published and is not precedent except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. 04-50921
                                 -2-

§ 922(g)(3); and for being a felon in possession of a firearm, in

violation of 21 U.S.C. § 922(g)(1).    He first contends that the

district court erred in sentencing him as an armed career

criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.

       Because Mata did not object to the armed-career-criminal

enhancement in the district court, review is for plain error.

See United States v. Vonn, 535 U.S. 55, 59 (2002).    Mata has

demonstrated that the enhancement was plainly erroneous because

the record does not establish that his prior conviction for

simple possession of cocaine under Texas law was a “serious drug

offense” or that his prior conviction for theft under Texas law

was a “violent felony” within the meaning of the statute so as to

qualify as predicate offenses.    See 18 U.S.C. §§ 924(e)(2)(A) and

(B).    Even assuming that the two other prior convictions pleaded

in the indictment constitute valid predicate offenses, three

predicate offenses are required by the statute.    See 18 U.S.C.

§ 924(e)(1).    The error affected Mata’s substantial rights

because, without the enhancement, he would have been subjected to

a lower sentence.

       Mata next renews the argument, preserved in the district

court, that his constitutional rights were violated when the

district court assessed a two-point adjustment, pursuant to

U.S.S.G. § 2K2.1(b)(4), based on judicially determined facts,

citing Blakely v. Washington, 124 S. Ct. 2531 (2004).     In light

of the Supreme Court’s recent decision in United States v.
                           No. 04-50921
                                -3-

Booker, 125 S. Ct. 738, 756 (2005), the two-level adjustment

violated Mata’s Sixth Amendment right to a trial by jury, and the

Government has not carried its burden of demonstrating that the

error was harmless.   Accordingly, Mata’s sentence is VACATED, and

the case is REMANDED FOR RESENTENCING.    See United States v.

Pineiro, __F.3d__, No. 03-30437, 2005 WL 1189713, *4 & n.4 (5th

Cir. May 20, 2005); United States v. Akpan, 407 F.3d 360, 377

(5th Cir. 2005); United States v. Mares, 402, 511, 520 n.9 (5th

Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-

9517).

     VACATED AND REMANDED FOR RESENTENCING.
