UNITED STATES of America, Plaintiff-Appellee, v. Tehran Andre BATEY, Defendant-Appellant, 138 F. App'x 677

PER CURIAM: Tehran Batey appeals the sentence he received following his guilty plea for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a). He renews his argument, preserved in the district court, that his constitutional rights were violated when the district court assessed a two-level enhancement for possession of a firearm, pursuant to § 2D1.1(b)(1) (2003), citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The government concedes that it cannot meet its burden under a harmless error analysis that the mandatory nature of the guidelines did not contribute to the sentence imposed. United States v. Akpan, 407 F.3d 360, 377 (5th Cir.2005). Accordingly, Batey’s sentence must be vacated and remanded for resentencing consistent with Booker,—U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). VACATED and REMANDED. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.