                                                       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.


                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CR-90-ALL
                       --------------------

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this opinion should not be published and is not precedent except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
                               -3-

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.
