                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 8, 2006

                      ----------------------             Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41179
                          Summary Calendar
                      -----------------------

UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

CLINTON DALE EADS

                     Defendant - Appellant

                    --------------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 4:04-CR-27-ALL-RAS
                     -------------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Clinton Dale Eads appeals his 50-month sentence for bank

robbery in violation of 18 U.S.C. § 2113(a).    He contends that the

district court violated his Sixth Amendment right to a jury trial

when it enhanced his sentence based on the district judge’s finding

that a threat of death was made because this finding was neither

admitted by him nor made by a jury beyond a reasonable doubt.

     The district court erred when it enhanced Eads’s sentence

pursuant to U.S.S.G. § 2B3.1(b)(2)(F) because the court’s factual

finding that Eads told the bank teller he had a gun was neither

     *
        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this opinion should not be published and is not precedent except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.
admitted by Eads nor found by a jury beyond a reasonable doubt.

See United States v. Booker, 543 U.S. 220, 244 (2005).       Because

Eads preserved his Sixth Amendment argument in the district court

by raising an objection based on Blakely v. Washington, 542 U.S.

296 (2004), we review for harmless error.    See United States v.

Garza, 429 F.3d 165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct.

1444 (2006). The Government bears the burden of demonstrating that

the Booker error did not affect Eads’s sentence. See United States

v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).

     The mere fact that the district court sentenced Eads in the

middle of the applicable guidelines range, standing alone, fails to

satisfy the Government’s burden of proving harmless error beyond a

reasonable doubt.   See Garza, 429 F.3d at 170-171.     Further, the

sentencing transcript is silent with regard to whether the district

court would have imposed the same sentence absent the Booker error.

Therefore, the Government has failed to carry its burden of showing

beyond a reasonable doubt that the error did not affect Eads’s

sentence.   See Pineiro, 410 F.3d at 287.        We therefore vacate

Eads’s sentence and remand the case for resentencing.

     SENTENCE VACATED; CASE REMANDED.
