United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-51107
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY WAYNE WETLESEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-110-ALL
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Timothy Wayne Wetlesen appeals his sentence imposed pursuant
to a plea of guilty to attempt to manufacture methamphetamine.
See 21 U.S.C. § 841(a)(1). He argues that pursuant to United
States v. Booker, 543 U.S. 220 (2005), his case should be
remanded for resentencing because the district court erred in
sentencing him pursuant to the then-mandatory Sentencing
Guidelines.
*
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this opinion should not be published and is not precedent except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. 04-51107
-2-
By sentencing Wetlesen under a mandatory guidelines regime,
the district court committed what this court refers to as Fanfan
error. See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). The Government concedes that Wetlesen preserved his
Fanfan argument by raising an objection in the district court
pursuant to Blakely v. Washington, 542 U.S. 296 (2004). Given
the district court’s statement that it would impose the same
sentence in the event the Guidelines were declared
unconstitutional, the Government has carried its burden of
demonstrating harmless error beyond a reasonable doubt. See
e.g., United States v. Saldana, 427 F.3d 298, 314 (5th Cir.
2005), cert. denied, 2006 WL 37834 (Jan. 9, 2006).
AFFIRMED.