                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                           January 20, 2006

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                                No. 04-11519
                              Summary Calendar



                       UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                     versus

                           MARCUS NELSON DEES,

                                            Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 4:04-CR-69-ALL-Y
                          --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Marcus Nelson Dees appeals his 60-month sentence following his

guilty plea to possession of sexually explicit visual depictions of

a   minor,   which   images    had   been     shipped    and   transported        in

interstate     commerce.      Dees   argues    that     he   was   sentenced      in

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

because the sentencing enhancements under U.S.S.G. § 2G2.2(b)(1)

and U.S.S.G. § 2G2.2(b)(3) were based on facts not admitted by him

or found by a jury.


      *
       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this opinion should not be published and is not precedent except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.
                           No. 04-11519
                                -2-

     In the present case, the district court stated that it would

sentence Dees to the same sentence (60 months in prison) in the

event that the guidelines were held unconstitutional.    Thus, the

Government has pointed to record evidence demonstrating beyond a

reasonable doubt that the federal constitutional error of which

Dess complains did not contribute to the sentence that he received.

See United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).

Therefore the decision of the district court is AFFIRMED.
