                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10049
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TORREY LIDELL DAVIS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:04-CR-210-1-G
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Torrey Lidell Davis appeals the sentence imposed following

his guilty-plea conviction for copyright infringement.      Davis

contends that his sentence is illegal under United States v.

Booker, 543 U.S. 220 (2005), because it was based upon facts that

were neither proved nor admitted and because the sentence was

imposed pursuant to a mandatory application of the Sentencing

Guidelines.




     *
       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this opinion should not be published and is not precedent except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. 05-10049
                                  -2-

     The Government has not carried its burden of demonstrating

that the Booker error in this case was harmless.      See United

States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).

Accordingly, Davis’s sentence is vacated, and the case is

remanded for resentencing.    Because it is necessary to vacate

Davis’s sentence based upon the Sixth Amendment Booker error, we

need not address Davis’s Fanfan claim.      See United States v.

Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
