                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 26, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-61177
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BENNY JOHNSON, also known as Lil Benny,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      USDC No. 2:03-CR-98-2
                       --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Benny Johnson appeals his jury convictions and sentences for

conspiracy to possess with intent to distribute cocaine base,

possession with intent to distribute in excess of 50 grams of

cocaine base, and possession of a firearm in relation to a drug-

trafficking offense.   Johnson argues that the evidence was

insufficient to support his convictions for conspiracy to possess

with intent to distribute cocaine base, possession with intent to

distribute in excess of 50 grams of cocaine base, and possession


     *
       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this opinion should not be published and is not precedent except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. 04-61177
                                 -2-

of a firearm in relation to a drug-trafficking offense.     Because

Johnson moved for a judgment of acquittal at the close of the

Government’s case and did not present any evidence, he properly

preserved his sufficiency claim for appellate review.      See United

State v. Resio-Trejo, 45 F.3d 907, 911 n.6 (5th Cir. 1995).     “In

deciding the sufficiency of the evidence, we determine whether,

viewing the evidence and the inferences that may be drawn from it

in the light most favorable to the verdict, a rational jury could

have found the essential elements of the offenses beyond a

reasonable doubt.”   United States v. Pruneda-Gonzalez, 953 F.2d

190, 193 (5th Cir. 1992).

     A review of the evidence indicates that a rational jury

could have found the evidence sufficient to establish beyond a

reasonable doubt that Johnson possessed a firearm in relation to

or in furtherance of the drug-trafficking offenses.      See United

States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000).

Johnson was arrested while climbing out of the rear window of the

house in which cocaine base was being sold.     After his arrest,

police found an unusual bullet in his pocket.      Inside the house,

police found a handgun, loaded with the same unusual bullets that

Johnson had in his pocket, on the floor just below the window out

of which Johnson was climbing.   Police also found a brown paper

bag containing approximately 57.72 grams of cocaine base lying on

the ground near Johnson’s right foot.      Codefendant Mario Blanch

testified that he had seen Johnson with the handgun on the night
                           No. 04-61177
                                -3-

of the search.   In view of this evidence, a rational jury could

have found that the evidence established beyond a reasonable

doubt that Johnson possessed the handgun in relation to or in

furtherance of the drug-trafficking offenses.     See

Pruneda-Gonzalez, 953 F.2d at 193.

     The evidence was also sufficient to support Johnson’s

convictions for conspiracy to possess with intent to distribute

cocaine base and possession with intent to distribute in excess

of 50 grams of cocaine base.   In addition to the evidence already

noted, the arresting officer testified that he noticed that while

Johnson was handcuffed on the ground, he was cocking his right

leg back “as if to move the dope out of the way.”       Blanch also

testified that Johnson had been selling cocaine base out of a

brown paper bag just before the police arrived.     Police seized

firearms, ammunition, and electronic scales with white residue

inside the house.   In view of this evidence, a rational jury

could have found that the evidence established that Johnson

participated in a conspiracy to possess with intent to distribute

cocaine base and that he possessed with intent to distribute in

excess of 50 grams of cocaine base.   See Pruneda-Gonzalez, 953

F.2d at 193.

     Johnson also argues that the district court erred in

sentencing him under the then mandatory United States Sentencing

Guidelines held unconstitutional in United States v. Booker, 124

S. Ct 738 (2005).   The Government concedes that Johnson preserved
                             No. 04-61177
                                  -4-

this issue for appeal.    Therefore, the Government bears the

burden of showing harmless error by “‘prov[ing] beyond a

reasonable doubt that the district court would not have sentenced

[the defendant] differently had it acted under an advisory

Guidelines regime.’”     United States v. Garza, 429 F.3d 165, 170

(5th Cir. 2005)(quoting United States v. Pineiro, 410 F.3d 282,

284-87 (5th Cir. 2005)).    The Government has not met its burden

as it has not cited record evidence indicating that the district

court would have imposed the same sentence under an advisory

Guidelines scheme.     See id.   Therefore, Johnson’s sentences are

VACATED, and the case is REMANDED for resentencing.

     CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED

FOR RESENTENCING.
