United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-41059
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RICKY BERNARD SMITH
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-183-ALL-PNB
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Ricky Bernard Smith appeals from his guilty-plea conviction
for possession of stolen mail. Smith argues that his sentence
should be vacated and remanded under United States v. Booker, 543
U.S. 220 (2005), because the district court erred by sentencing
him based on judicial fact-findings made in violation of his
rights under the Sixth Amendment. Smith preserved this issue by
objecting to the sentence enhancement on Sixth Amendment grounds.
United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
*
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this opinion should not be published and is not precedent except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. 04-41059
-2-
We cannot affirm the erroneous sentence unless the
Government shows that the error is harmless beyond a reasonable
doubt. See United States v. Pineiro, 410 F.3d 282, 285-86 (5th
Cir. 2005). We conclude that the Government has not met its
burden. See United States v. Garza, 429 F.3d 165, 171 (5th Cir.
2005). We therefore VACATE Smith’s sentence and REMAND for re-
sentencing.