United States v. Wetlesen

169 F. App'x 409

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 1, 2006
• Docket: 04-51107
• Status: Unpublished

Opinion

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his case should be remanded for resentencing because the district court erred in sentencing him pursuant to the then-mandatory Sentencing Guidelines.

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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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, — U.S.-, 126 S.Ct. 1097, 163 L.Ed.2d 911 (2006).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.