                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 19, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 04-50330
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN ALBERTO MONTES, JR.,
also known as Jose Maria Gonzalez,
also known as Jorge Montes-Ramos,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-03-CR-1943-ALL-DB
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Juan Alberto Montes, Jr., appeals his sentence of 24 months

in prison arising from his guilty-plea conviction for illegal re-

entry into the United States.   Montes argues that the upward

adjustment for obstruction of justice was contrary to the

Sentencing Guideline’s commentary and that, even if the

obstruction adjustment was not barred, it was not supported by

the evidence because the Government admitted that it could not


     *
       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this opinion should not be published and is not precedent except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. 04-50330
                                  -2-

prove that “Juan Alberto Montes” is a false name and the

Government had offered no evidence that the birth date Montes had

given was false.

     The district court made no explicit finding to support the

enhancement for obstruction of justice.     By granting the

Government’s motion, the district court implicitly found either

that Montes had made a materially false statement to a judge or

magistrate judge or to the probation officer.     However, the

record does not support a finding that Montes had made a false

statement at all.    The Government admitted that it did not know

whether “Montes” was a false name and did not offer any evidence

that the 1972 birth date was false.     Thus, the district court

clearly erred.     See United States v. Martinez, 263 F.3d 436, 441

(5th Cir. 2001).

     We do not conclude, “on the record as a whole, that the

error was harmless, i.e., that the error did not affect the

district court’s selection of the sentence imposed.”     United

States v. Ahmed, 324 F.3d 368, 374 (5th Cir. 2003)(internal

quotation marks and citations omitted).     Montes’s sentence is

VACATED and the matter REMANDED for resentencing.
