                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                        February 17, 2006
                             FOR THE FIFTH CIRCUIT
                             _____________________                  Charles R. Fulbruge III
                                                                            Clerk
                                  No. 04-50761
                             _____________________

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                      versus

CHARLES DENNIS RUCKER,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. 6:03-CR-39-1
_________________________________________________________________

Before JOLLY, SMITH, and GARZA, Circuit Judges.

PER CURIAM:1

     Charles        Dennis   Rucker   pleaded    guilty     to    the    unlawful

possession     of    anhydrous   ammonia   in   violation    of    21   U.S.C. §

843(a)(6).2    Because of Blakely v. Washington, 542 U.S. 296 (2004),

but over Rucker’s objection, the district court sentenced Rucker to

three alternate sentences:        (1) 88 months of imprisonment, 3 years

of supervised release, a fine of $1,000, and a $100 special

     1
      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this opinion should not be published and is not precedent except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.
     2
      21 U.S.C. § 843(a)(6) provides that it is “unlawful for any
person knowingly or intentionally . . . to possess any . . .
chemical, product, or material which may be used to manufacture a
controlled substance or listed chemical, knowing, intending, or
having reasonable cause to believe, that it will be used to
manufacture a controlled substance.” 21 U.S.C. § 843(a)(6) (2005).
assessment if the Guidelines remain intact; (2) 10 months of

imprisonment   (supervised        release,   fine     and   special       assessment

remain the same) if the Guidelines were found unconstitutional as

to   upward   departures     and      relevant   conduct      under       Blakely    v.

Washington; and (3) 7 years of imprisonment (supervised release,

fine and special assessment remain the same) should the Guidelines

be found unconstitutional.             Rucker contends on appeal that the

district   court    erred    in    two   ways:       first,    by   applying        the

enhancement    of   U.S.S.G.      §   2D1.1(b)(1),     allowing       a    two-point

increase in the base offense level for possession of a firearm, and

second, in its consideration of the Guidelines as constitutional.

For the reasons stated below we VACATE Rucker’s sentence and REMAND

for resentencing not inconsistent with this opinion.

                                         I

      Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level is

increased by two levels, “[i]f a dangerous weapon (including a

firearm) was possessed.”          The commentary to § 2D1.1(b)(1) states,

“[t]he adjustment should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with

the offense.    For example, the enhancement would not be applied if

the defendant, arrested at his residence, had an unloaded hunting

rifle in the closet.”       U.S.S.G. § 2D1.1(b)(1), comment, n.3.               “The

district court’s decision to apply § 2D1.1(b)(1) is essentially a

factual    determination     reviewable      under    the     clearly      erroneous



                                         2
standard.”3   United States v. Rodriguez, 62 F.3d 723, 724 (5th Cir.

1995).    If a factual finding is plausible in the light of the

record as a whole, there is no clear error.          United States v.

Parker, 133 F.3d 322, 330 (5th Cir. 1998).

      Rucker argues that the § 2D1.1(b)(1) enhancement was error as

the weapons4 were in a bedroom separate from the detached garage

where the illegal activity took place.     He argues that no evidence

of manufacturing of any drugs was found in the house, and that the

weapons found in the bedroom were “essentially hunting rifles.”

      The evidence upon which the district court relied in applying

the   enhancement   was   as   follows:   First,   Lieutenant   Medford

testified at sentencing that no drugs were found inside the house.

However, he also testified that the government knew drugs had

previously been in the house based on the testimony of Rucker’s

girlfriend that she had flushed some down the toilet.           Further,

Medford testified that Rucker’s girlfriend stated that Rucker

normally manufactured methamphetamine in both the detached and

attached garages.    Finally, Medford testified that certain drug

paraphernalia, specifically syringes, were found in the kitchen.5

      3
       The clear-error standard survives United States v. Booker,
543 U.S. 220 (2005). United States v. Villanueva, 408 F.3d 193,
203 n.9 (5th Cir. 2005) (internal citations omitted).
      4
       During a search of Rucker’s home officers recovered a New
Haven .22 caliber rifle, a Savage .30-30 bolt action rifle, and a
Stevens .410 gauge shotgun located in the back bedroom.
      5
       Rucker’s girlfriend testified that the syringes belonged to
her diabetic daughter and that she had never spoken to Lieutenant

                                    3
Additionally, the presentence report noted that, according to a

“concerned citizen,” Rucker normally kept a handgun close to him

and had made statements about “shooting people.”

      Based on the above evidence the district court did not clearly

err in concluding that it is not “clearly improbable” that the

firearms were connected to Rucker’s offense.                   Consequently, the

district   court    did    not    clearly      err    in   applying    the   §   2D1.1

enhancement.

                                          II

      The sentencing in this case took place before the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005).

Based on the Supreme Court’s analysis under the Sixth Amendment,

Booker severed the portions of the Sentencing Reform Act that

mandated sentencing and appellate review in conformance with the

Guidelines.    Id. at 756-57, 764-65.                Consequently the Guidelines

were rendered “effectively advisory.”

      In United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)

cert. denied,      126    S.Ct.    43    (2005),      this   Court    addressed   the

application of Booker, holding that in cases where Booker error was

preserved, “we will ordinarily vacate the sentence and remand,

unless we can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.”                Id. at 520 n.9.     A review of

the   record   establishes        that    Rucker      timely   raised    a   Blakely



Medford.

                                          4
objection to his sentence which effectively preserved Booker error

for appellate review.     United States v. Akpan, 407 F.3d 360, 376

(5th Cir. 2005).      The question thus becomes whether the district

court’s error in considering the Guidelines mandatory was harmless.

     The   district    court   imposed   three   alternative   sentences.

Although we may speculate which sentence the district court would

impose, this court has recognized that mere speculation fails to

satisfy a harmless error standard of review.          See, e.g., United

States v. Pineiro, 410 F.3d 282, 287 (5th Cir. 2005) (applying the

harmless error standard in a claim of Booker error and holding that

the government must bear the burden “of showing beyond a reasonable

doubt that the district court would have imposed the same sentence

under an advisory scheme.”).     As the government correctly concedes

that it cannot demonstrate harmless error, resentencing in light of

Booker is appropriate.

                                   III

     For the above stated reasons Rucker’s sentence is VACATED, and

the case is REMANDED for resentencing.



                                                  VACATED and REMANDED.




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