                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   January 4, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                               04-21014



UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee,

                                versus

DEMARCUS LACARL JONES,

                                                  Defendant-Appellant.

                         --------------------

           Appeal from the United States District Court
                for the Southern District of Texas

                         --------------------

Before REAVLEY, DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Defendant Demarcus LeCarl Jones appeals his sentence after

entering a guilty plea for being a felon in possession of a

firearm.   Finding that any Booker error in the district court’s

discretionary upward departure was harmless, we affirm.

                                  I.

     Jones’ presentence report (PSR) calculated his guideline

sentence range at 46 to 57 months.       Jones filed no objections to

the PSR.   At sentencing, the district court departed upward and

sentenced Jones to the statutory maximum sentence of 120 months.

As justification, the court noted that based on the police report
                             No. 04-21014
                                  -2-


Jones was driving a car and in possession and under the influence

of drugs at the time of the current offense.    The court found

that this behavior seriously endangered the public and seriously

aggravated the offense.     The court also alluded to charges on two

state court offenses that occurred after the instant offense in

which Jones apparently possessed guns and “used them in personal

violence.”   Based on Jones’ persistent use of firearms or

violence against others, and the public endangerment he created

while committing the instant offense, the district court departed

upward seven levels to a guideline range of 97 to 121 months of

imprisonment.

     Jones objected to the upward departure on the basis that it

was based on facts not proven beyond a reasonable doubt to a jury

or admitted by Jones.   The district court overruled the

objections and sentenced Jones to 120 months in prison, the

statutory maximum for his offense, and three years of supervised

release.   Jones appeals.

                                 II.

     Jones argues that the district court violated his Sixth

Amendment rights under Booker when it based its upward departure,

at least in part, on judicially found facts.    Jones’ objection to

the upward departure in the district court preserved this

challenge.   “[I]f either the Sixth amendment issue presented in

Booker or the issue presented in Fanfan is preserved in the

district court by objection, [this court] will ordinarily vacate
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                                -3-


the sentence and remand, unless we can say the error is harmless

under Rule 52(a) of the Federal Rules of Criminal Procedure.”

United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).

The government bears the burden of demonstrating that the error

was harmless by demonstrating beyond a reasonable doubt that the

Booker error did not contribute to the sentence he received.

United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).     In

other words, the government must point to evidence in the record

showing that the district court “would have imposed the same

sentence under an advisory sentencing scheme.”   United States v.

Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).

     In several unpublished opinions, we have found harmless

error in cases in which the district judge expressly stated that

it would impose the same sentence under an advisory system or

expressed disappointment that the statutory maximum sentence that

it imposed was not greater.   United States v. Nelson, 2005 U.S.

App. LEXIS 17938 (No. 04-11443, unpublished); United States v.

Green, 2005 U.S. App. LEXIS 24480 (No. 04-30795, unpublished);

United States v. Ben, 2005 U.S. App. 23778 (No. 04-50648,

unpublished).   Although the record in this case does not include

similar explicit statements as to what the district court would

do under an advisory scheme, it does contain other evidence that

the district court would have imposed the maximum statutory

sentence under either a mandatory or advisory guideline scheme.
                           No. 04-21014
                                -4-


     The district court ordered an upward departure in Jones’

case under the authority of U.S.S.G. § 5K2.0.   The decision to

depart from a guideline sentence “embodies the traditional

exercise of discretion by the sentencing court.”    U.S.S.G. §

5K2.0 Commentary, citing Koon v. United States, 518 U.S. 81

(1996).   A court has substantial discretion under the guidelines

to depart from the recommended guideline range.    In other words,

an upward departure is in no sense mandatory.     Booker only struck

down the mandatory application of the guidelines when

calculations were based on facts not found beyond a reasonable

doubt by a jury or admitted by the defendant.     United States v.

McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005).    As the facts

relied on by the district court in making the upward departure

were not applied to a mandatory provision of the guidelines,

there is arguably no Booker error.

     Whether exercise of a court’s discretion to depart upward is

a decision made under a “mandatory Guidelines regime,” as needed

for Booker error, is a matter of some uncertainty.    See United

States v. Vernier, 2005 U.S. App. LEXIS 22049 (11th Cir. 2005),

comparing United State v. May, 413 F.3d 841, 848 (8th Cir.

2005)(stating that it is “unclear” whether a departure within the

district court’s discretion is Booker error), with United States

v. Cunningham, 405 F.3d 497, 504 (5th Cir. 2005)(“To the extent

that [defendant] argues that the court’s upward departure [not
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                                -5-


mandated by the guidelines] violates the Sixth Amendment, he is

correct.”).

     We need not decide that question, because even assuming that

Jones can establish Booker error under these circumstances, we

find any error to be harmless.   United States v. Rodriguez-

Chavez, 2005 WL 2995594 (10th Cir. 2005)(Assuming arguendo that

defendant’s argument that an upward departure based on prior

convictions violated Booker, and proceeding to find no harmless

error.) There is no argument that the mandatory nature of the

guidelines affected the district court’s sentencing decision in

any way.   The district court properly calculated Jones’

guidelines sentence, without objection from Jones, and then

exercised its discretion to depart from the sentence that would

result from a mandatory application of the guidelines.     Jones’

only argument under Booker is that the district court’s use of

judge found facts to support the upward departure violates Booker

and Blakely.   He makes no argument of Booker error in relation to

the calculation of the base mandatory guideline sentence.

     In this aspect, this case is distinguishable from a similar

case decided by the Seventh Circuit.   In United States v. Burke,

425 F.3d 400, 416-17 (7th Cir. 2005), the Seventh Circuit found

the government failed to establish harmless error from alleged

Booker error as to a sentence that included an upward departure.

Burke had been convicted of perjury.   The guidelines directed the

district court to apply the guideline relevant to the criminal
                           No. 04-21014
                                -6-


offense with respect to which the defendant gave false testimony.

The court stated that the guidelines directed it to apply a

certain cross-referenced guideline that triggered additional

enhancements.   The district court then upwardly departed because

the criminal history category under-represented Burke’s criminal

past and likelihood of recidivism.   The court sentenced Burke in

the middle of the range resulting from the increased criminal

history category and the enhanced offense level.    Burke argued

that his sentence violated Booker, without limiting his argument

to the upward departure as does Jones.    Because the district

court’s calculation of Burke’s base guideline sentence, including

the cross-referencing guideline and several enhancements, was

affected by a mandatory application of the guidelines, the

Seventh Circuit found that the government had not established

that the district court would have imposed the same sentence had

the guidelines been merely advisory.   Our case differs in two

material respects - the nature of the defendant’s Booker

challenge to his sentence and the fact that the district court in

Jones’ case upwardly departed to the statutory maximum sentence.

     The district court imposed the upward departure because

Jones’ case did not involve the mere possession of a firearm by a

convicted felon.   The departure reflected the court’s concern

with the seriousness of Jones’ weapon possession while under the

influence of drugs and his pattern of actually using weapons that

he possessed.   These are appropriate factors for an upward
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                                -7-


departure and Jones does not assert otherwise.     U.S.S.G. §

5K2.0(a)(1)(A), (3).   The district court found that an offense

level of 28 appropriately reflected the seriousness of the

circumstances of Jones’ offense.     The court also specifically

stated that a six-level upward departure would be insufficient

and that an eight-level departure would be too much.

     Under the specific facts of this case, in which the

defendant’s Booker challenge is addressed only to a discretionary

aspect of the sentencing guidelines, we find that the government

has met its burden of establishing beyond a reasonable doubt that

any Booker error did not contribute to the sentence Jones

received.   Additionally, the fact that the district court

departed up to the statutory maximum sentence further supports

the conclusion that the district court would have imposed the

same sentence under an advisory sentencing scheme.1

                               IV.

     For the foregoing reasons, Jones’ sentence is AFFIRMED.




     1
        Jones argument that a retroactive application of Booker’s
remedial holding to his case on remand would violate the Ex Post
Facto clause is foreclosed by this court’s decision in United
States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).
