                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              December 15, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk


                                            No. 05-40088
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                           Appellee,

                                                  versus

ANTHONY LOUIS EATON,

                                                                                        Defendant-
                                                           Appellant.

                       --------------------------------------------------------------
                            Appeal from the United States District Court
                                   for the Eastern District of Texas
                                      USDC No. 1:03-CR-136-1
                       --------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Anthony Louis Eaton pleaded guilty to possession of an unregistered firearm and was

sentenced to 37 months of imprisonment, two years of supervised release, and a $100 special

assessment. Eaton argues on appeal that under United States v. Booker, 125 S. Ct. 738 (2005), the

district court violated his Sixth Amendment rights when it increased his offense level by two levels



       *

  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 R. 47.5, the court has determined that this opinion should not be published and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.
due to his use of a destructive device and when it increased his offense level by four levels due to his

use of a firearm in connection with a felony based on facts that were not admitted by him or found

by a jury. Eaton preserved this issue by arguing in the district court that his sentence violated Blakely

v. Washington, 542 U.S. 296 (2004). See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).



        Eaton admitted the facts underlying the two-level increase in his offense level for possession

of a destructive device when he pleaded guilty to possessing a destructive device as stated in the

indictment and when he signed an agreed stipulation, which was admitted without objection at

rearraignment, stating that he knowingly possessed a destructive device, “identified as an incendiary

bomb” under 26 U.S.C. § 5845(f). However, because he did not admit the facts underlying the four-

level increase in his offense level for use of a firearm in connection with a felony, the district court

committed error under Booker when it made this increase. See Booker, 125 S. Ct. at 755-56. The

Government concedes that it cannot meet its “burden of showing that the error was harmless beyond

a reasonable doubt.” See United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005). Accordingly,

Eaton’s sentence is VACATED, and the case is REMANDED FOR RESENTENCING. See id. at

285-87.

        Eaton also argues that the district court erred in determining that under the Sentencing

Guidelines, his sentence should be increased for his use of a firearm in connection with another felony

offense. However, because this case is remanded for sentencing under Booker, this court need not

address this issue. See Akpan, 407 F.3d at 377 n.62.

        VACATE SENTENCE; REMAND FOR RESENTENCING.




                                                  -2-
