                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                    December 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-50266
                          Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

                           BRIAN WENGLER,

                                                 Defendant-Appellant.


            Appeal from the United States District Court
                  for the Western District of Texas
                          (A-03-CR-210-2-SS)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Brian Wengler appeals his sentence, following his guilty-plea

conviction for conspiracy to manufacture methamphetamine.       Wengler

contends that the district court erroneously decided that an upward

sentencing departure was warranted because his criminal history

score did not properly reflect the severity of his past criminal

behavior.   Alternatively, Wengler claims that the extent of the

departure was unreasonable. Wengler contends for the first time on



     *
       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this opinion should not be published and is not precedent except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.

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appeal that the departure violated his Sixth Amendment rights as

outlined in Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005).

     Wengler has not shown that the decision to upwardly depart was

either unreasonable or an abuse of discretion.    See United States

v. Simkanin, 420 F.3d 397, 416 (5th Cir. 2005); United States v.

Smith, 417 F.3d 483, 489 (5th Cir. 2005), cert. denied, 2005 WL

3027879 (U.S. 14 Nov. 2005) (No. 05-7063).        The decision was

grounded in an acceptable basis.     See 18 U.S.C. § 3553(a)(1).

Further, the extent of the departure was acceptable.    See Smith,

417 F.3d at 492.

     Nor has Wengler shown he should receive relief under Booker.

Because Wengler did not present this claim in district court, it is

reviewed only for plain error.   See United States v. Saldana, Nos.

04-50527, 04-50591, 2005 WL 2404810, at *6 (5th Cir. 30 Sept.

2005).   There is nothing in the record showing the district court

would have acted differently under an advisory Guidelines system.

See id. Therefore, Wengler has not shown his substantial rights

were violated. See id. at *7.

                                                       AFFIRMED




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