                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-5022



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JASON OLSON BETHEA,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Rebecca Beach Smith,
District Judge. (CR-04-95)


Submitted:   March 25, 2005                 Decided:   April 8, 2005


Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bryan L. Saunders, Newport News, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Eric M. Hurt,
Assistant United States Attorneys, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jason Olson Bethea pled guilty to one count of escape

from custody in violation of 18 U.S.C. § 751(a) (2000).                At

sentencing, the district court granted the Government’s motion and

imposed an upward departure and sentenced Bethea to five years’

imprisonment, the statutory maximum for the offense.          The court,

after considering the guidelines and the factors under 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2004), stated that even if the

guidelines were not mandatory, it would impose the same sentence.

On appeal, Bethea cites United States v Booker, 125 S. Ct. 738

(2005), and Blakely v. Washington, 124 S. Ct. 2531 (2004), for the

proposition that the court erred in imposing a sentence under the

sentencing    guidelines.     Bethea      further   argues   the   upward

enhancement was improper.    We affirm.

           Because the district court’s alternate sentence was based

upon the guidelines and the factors under § 3553(a) and was not

greater than the statutory maximum, we find the upward departure

and the five year sentence to be harmless error.         We further find

the sentence reasonable. Booker, 125 S. Ct. at 764-67 (Breyer, J.,

opinion of the Court).

           Accordingly, we affirm the sentence.         We dispense with

oral   argument   because   the   facts   and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.



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        AFFIRMED




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