                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 4, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41552
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JASON WAYNE McBRIDE,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-726-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jason Wayne McBride challenges his sentence for transporting

illegal aliens within the United States, in violation of 8 U.S.C.

§ 1324.   On appeal, McBride argues that his sentence was

unconstitutional in light of United States v. Booker, 125 S. Ct.

738 (2005), because it was enhanced based on facts neither proven

to a jury beyond a reasonable doubt nor admitted by him.

     When a Booker error is preserved, this court “will

ordinarily vacate the sentence and remand,” unless the error is


     *
       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this opinion should not be published and is not precedent except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. 04-41552
                                -2-

harmless.   United States v. Pineiro, __F.3d__, No. 03-30437, 2005

WL 1189713, at *2 (5th Cir. May 20, 2005) (on remand from the

Supreme Court)(internal quotation marks and citation omitted).

The Government bears the burden of demonstrating that the error

was harmless beyond a reasonable doubt.    Id.   In order to carry

this burden, the Government must show that the Booker error did

not affect the sentence that the defendant received, i.e., it

must show “that the district court would have imposed the same

sentence absent the error.”   Id.

     The Presentence Report set McBride’s base offense level at

12 pursuant to U.S.S.G. § 2L1.1.    Three points were added to

McBride’s offense level pursuant to § 2L1.1(b)(2)(A) because the

offense involved 6 to 24 illegal aliens.    Pursuant to

§ 2L1.1(b)(5), McBride’s offense level was increased to 18

because the offense created a substantial risk of death or

serious bodily injury to another person.    McBride was awarded a

three-point downward departure for acceptance of responsibility

pursuant to § 3E1.1, resulting in a total offense level of 15.

     McBride preserved his objections to the enhancement of his

sentence based on the dangerous manner in which his passengers

were transported and the number of illegal aliens transported by

raising the arguments both in the district court and on appeal.

Despite the Government’s argument to the contrary, McBride did

not implicitly admit to the facts necessary to support the

enhancement to his sentence based on the reckless endangerment of
                            No. 04-41552
                                 -3-

his passengers by assenting to the facts presented during the

guilty plea colloquy.    McBride did not otherwise admit such facts

and they were not proven to a jury beyond a reasonable doubt.

Without the sentence enhancement for the reckless endangerment of

his passengers, McBride’s total offense level of 15 would have

made him eligible only for a two-point downward departure for

acceptance of responsibility.    See § 3E1.1(b).   Based on a

criminal history category of IV and a total offense level of 13,

McBride’s guidelines imprisonment range would have been 24 to 30

months of imprisonment as opposed to 30 to 37 months.

       Whether McBride admitted to the number of illegal aliens

secreted within his trailer during the guilty plea colloquy is a

closer question.    The Government contends and McBride contests

that he implicitly admitted that he transported 20 illegal aliens

inside his trailer by failing to contest the facts recited during

the guilty plea colloquy and to recant or correct his admission

to border patrol agents that he was transporting aliens for a

fee.    On remand, the district court should determine, as an

initial matter, whether McBride admitted to the number of illegal

aliens secreted inside his trailer during the guilty plea

colloquy.

       Should the district court find that McBride did not admit to

the number of illegal aliens he transported, his total offense

level would be 10.    With a total offense level of 10 and a
                           No. 04-41552
                                -4-

criminal history category of IV, McBride’s guidelines

imprisonment range would be 15 to 21 months.

      Under either scenario, the district court’s Booker error

contributed to McBride’s sentence, and he was prejudiced by the

error because the available sentencing range was increased beyond

that which he would otherwise have been eligible.   See United

States v. Akpan, 407 F.3d 360, 376-377 (5th Cir. 2005) (A

“harmless error” is one that does not affect the defendant’s

substantial rights and does not cause prejudice by affecting the

outcome of the proceedings.).

      As the district court sentenced McBride to the minimum

sentence available under the guidelines and gave no indication

that it would have sentenced him differently had it acted under

an advisory guidelines regime, the Government has not met its

burden of proving that the district court would have imposed the

same sentence absent the error.   See Pineiro, 2005 WL 1189713, at

*2.

      Accordingly, McBride’s sentence is VACATED, and this case is

REMANDED to the district court for resentencing consistent with

Booker.
