                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        August 16, 2005
                          FOR THE FIFTH CIRCUIT
                          _____________________                      Charles R. Fulbruge III
                                                                             Clerk
                               No. 04-41079
                          _____________________

UNITED STATES OF AMERICA,
                                                    Plaintiff - Appellee,

                                   versus

SEALED APPELLANT 1,

                                                  Defendant - Appellant.

__________________________________________________________________

           Appeal from the United States District Court
            for the Eastern District of Texas, Beaumont
                     USDC No. 1:03-CR-67-12-RHC
_________________________________________________________________

Before JOLLY, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     The plea agreement in this case did not bar the instant appeal

because     of   representations     made   in   open       court    that     were

inconsistent with the written agreement.           Consequently, we will

review the Booker error that was preserved at sentencing.

     It is evident that the sentence, which was imposed under a

mandatory    guidelines    regime,    constituted       a    Sixth     Amendment

violation under the teachings of United States v. Booker, 125 S.Ct.

738 (2005). Because Sealed Appellant 1 preserved this error in the

district court, the question before us is whether the error was


     *
       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this opinion should not be published and is not precedent except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.
harmless beyond a reasonable doubt.   See United States v. Pineiro,

410 F.3d 282, 284 (5th Cir. 2005).     We hold that the error was

harmless beyond a reasonable doubt because even if the error were

cured, the sentence would be the same.     We say this because the

district court made this point explicitly clear when it said:

          The court will also note that in the event
          that a higher court rules that the Sentencing
          Guidelines, as some courts out west have
          ruled, are completely invalid, that in that
          case, the court would impose the same sentence
          basically for the reasons set out since the
          statutory provisions are up to 20 years, and
          this is within that amount.      Based on the
          amount of drugs involved, based upon the
          criminal history, based upon his role in the
          conspiracy, the court would find that, in its
          discretion, the same sentence of 86 months
          would be appropriate.

     Based on the above statement, we find the error harmless

beyond a reasonable doubt.   Accordingly, the sentence is

                                                            AFFIRMED.




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