                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-11290
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

MICHAEL SHANNON McCOY

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:04-CR-127-ALL
                      --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Michael Shannon McCoy appeals the sentence he received

following his guilty-plea conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g).

He argues that his sentence was wrongfully enhanced based on

judicially determined facts, in violation of United States v.

Booker, 543 U.S. 220 (2005).    Following Booker, the district

court erred in imposing a four-level adjustment based on the

judicial determination that McCoy’s firearms possession was done


     *
       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this opinion should not be published and is not precedent except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. 04-11290
                               -2-

in connection with another felony offense.   543 U.S. at 244.     As

McCoy preserved the issue, we review for harmless error, which

requires the Government to demonstrate beyond a reasonable doubt

that the district court would have imposed the same sentence if

the Sentencing Guidelines had been advisory.     See United States

v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).

     The Government urges that the error was harmless because

McCoy’s criminal history score underrepresented the seriousness

of his prior crimes and would be grounds for an upward departure.

However, the record demonstrates that the district court declined

to upwardly depart on that basis.   Moreover, the fact that the

court sentenced McCoy near the top of the guidelines range is

insufficient to satisfy the Government’s burden.     See United

States v. Woods, 440 F.3d 255, 260-62 (5th Cir. 2005).

     The Government has failed to carry its burden of

demonstrating beyond a reasonable doubt that the Booker error was

harmless in the instant case.   Accordingly, McCoy’s sentence is

VACATED, and the case is REMANDED for resentencing.
