UNITED STATES of America, Plaintiff-Appellee, v. Terry A. SIMPSON, Defendant-Appellant, 132 F. App'x 550

PER CURIAM: Terry A. Simpson appeals his sentence following his guilty-plea conviction to receipt of child pornography. He renews his claim that the district court erred by adjusting his offense level by four levels under U.S.S.G. § 2G2.2(b)(3) because the factual finding supporting the adjustment was made by the district court and was not made by a jury or admitted by him, thus violating the Fifth and Sixth Amendments under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) , and United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) .

The Government concedes that Simpson’s sentence is erroneous after Booker, that it cannot prove beyond a reasonable doubt that the district court would have imposed the same sentence if it knew that the guidelines were only discretionary, and that the case should be remanded for resentencing. Simpson’s sentence is thus vacated and the case is remanded for resentencing. United States v. Akpan, 407 F.3d 360, 374-77 (5th Cir.2005). VACATED AND REMANDED FOR RESENTENCING. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.