United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-11443
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY ANDREW NELSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-90-ALL
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Before REAVLEY, DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Terry Andrew Nelson appeals the sentence imposed following
his guilty-plea conviction of possession of child pornography
that had been transported in interstate commerce, in violation of
18 U.S.C. § 2252A(a)(5)(B). The court departed upward from the
70-to-87-month Sentencing Guidelines imprisonment range and
sentenced Nelson to the statutory maximum prison term of 10
years.
*
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this opinion should not be published and is not precedent except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. 04-11443
-2-
Nelson argues that the upward departure violated his Sixth
Amendment rights under United States v. Booker, 125 S. Ct. 738
(2005), because it was based on facts that were neither presented
to a jury for proof beyond a reasonable doubt nor admitted by
him. Nelson preserved this argument for appeal by raising a
similar challenge under Blakely v. Washington, 124 S. Ct. 2531
(2004), in district court. See United States v. Pineiro, 410
F.3d 282, 285 (5th Cir. 2005).
Nelson’s argument is reviewed for harmless error, which
places upon the Government the burden of demonstrating beyond a
reasonable doubt that the Booker error did not contribute to the
sentence Nelson received. United States v. Akpan, 407 F.3d 360,
377 (5th Cir. 2005). The Government has made such a showing
because the record evidence proves beyond a reasonable doubt that
the district court would have imposed same upward departure under
an advisory guidelines regime. See id. The district court
emphasized at Nelson’s sentencing that it had considered
mitigating evidence but nonetheless expressed disappointment that
there was “not a greater statutory maximum,” indicating that it
felt a sentence above that maximum was appropriate. See United
States v. Smith, F.3d , No. 03-10171 (5th Cir. June 18,
2005), 2005 WL 1663784 at *4. The court also cited several
reasons for the departure, including findings that Nelson’s
Category I criminal history score under-represented his criminal
background, that the offense involved a large number of visual
No. 04-11443
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depictions not accounted for by Nelson’s offense level, and that
Nelson had made inappropriate sexual comments to a nine-year-old
girl only a few days before his arrest for the instant offense.
Because the Government has demonstrated that any error under
Booker was harmless, we AFFIRM Nelson’s sentence.
Insofar as Nelson argues that individual offense-level
increases under the Guidelines violated his rights under Booker
and affected the guideline range from which the district court
departed upward, that claim is raised for the first time on
appeal and is reviewable for plain error only. See United States
v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for
cert. filed (U.S. Mar. 31, 2005) (No. 04-9517). Nelson, who
admitted most of the facts upon which these offense-level
increases were based, has not shown that any Booker error with
regard to these increases violated his substantial rights. See
id. at 521.
The sentence is AFFIRMED.