                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 19, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-20632
                           Summary Calendar


UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

WILLIAM DELAWRENCE LEWIS

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-118-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     William DeLawrence Lewis pleaded guilty to one count of

possession with intent to distribute 50 grams or more of cocaine

base and one count of possession of a firearm in relation to a

drug-trafficking offense.    The presentence report (PSR) concluded

that Lewis’s Sentencing Guidelines range for count one was 135 to

168 months of imprisonment, followed by a mandatory 60-month

sentence as to count two.    The district court departed upward

because the Guidelines did not adequately sanction either the

number or type of weapons Lewis possessed or Lewis’s uncharged

     *
       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this opinion should not be published and is not precedent except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. 04-20632
                                  -2-

bank fraud activity detailed in the PSR.     See U.S.S.G. §§ 5K2.0,

5K2.21.    The court sentenced Lewis to 210 months of imprisonment

as to count one and 60 months of imprisonment as to count two,

the sentences to run consecutively.     The court also imposed two

concurrent five-year terms of supervised release and a $200

special assessment.

     Lewis argues that the district court erred in treating the

Sentencing Guidelines as mandatory.     See United States v. Booker,

543 U.S. 220, 258-68 (2005).    This court has termed such error

“Fanfan” error.     See United States v. Martinez-Lugo, 411 F.3d

597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).     An

objection made under Blakely v. Washington, 542 U.S. 296 (2004),

like the one Lewis made to the district court’s upward departure,

preserves “Fanfan” error for appellate review.     United States v.

Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir. 2006).    The

Government bears the burden to show that “Fanfan” error was

harmless beyond a reasonable doubt.     United States v. Walters,

418 F.3d 461, 464 (5th Cir. 2005).

     In United States v. Jones, 435 F.3d 541, 543 (5th Cir.),

cert. denied, 126 S. Ct. 1592 (2006), we pointed out that

“whether exercise of a court’s discretion to depart upward is a

decision made under a ‘mandatory Guidelines regime’ . . . is a

matter of some uncertainty.”    Even if we assume that Lewis can

establish “Fanfan” error, we find any error to be harmless, as in

Jones.    See id.   The record demonstrates that the district court
                          No. 04-20632
                               -3-

knew that the upward departure was discretionary, particularly as

both the Government and Lewis argued for a sentence at the low

end of Lewis’s Guideline range.   In explaining its decision, the

district court noted that it found Lewis “more dangerous to the

community than the average or the heartland” drug offender.

The district court reviewed both of the Guideline provisions

supporting upward departure, see U.S.S.G. §§ 5K2.0, 5K2.21, and

the defendant’s conduct satisfying the conditions of those

provisions in reaching its decision.

     Accordingly, we conclude that the Government has borne its

burden of demonstrating that any error was harmless beyond a

reasonable doubt, as the district court’s statements indicate it

would have imposed the same sentence under an advisory regime.

For the foregoing reasons, we AFFIRM Lewis’s sentence.   The

Government’s motion to strike portions of Lewis’s reply brief and

alternative motion to file a sur-reply is DENIED.
