                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 30, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-11060
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMES DWAYNE WILSON,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                      USDC No. 3:03-CR-397-1-G
                        --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     James Dwayne Wilson appeals his jury conviction and sentence

for discharging a pollutant without a permit and aiding and

abetting.   See 33 U.S.C. §§ 1319(c)(2)(A), 1311(a); 18 U.S.C.

§ 2(a).   Wilson argues first that the district court erred in

admitting a Government exhibit and expert testimony from Jason

Bowen, a witness not qualified as an expert.   Bowen, a civil

environmental engineer, used the Hazardous Categorization System,

commonly referred to as the Haz-Cat, to categorize the substances


     *
       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this opinion should not be published and is not precedent except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. 04-11060
                                 -2-

that Wilson was convicted of discharging.    Bowen testified that

the discharged substance was a pollutant.    While not a chemist,

Bowen’s testimony demonstrated that he was well-versed in the

operation and methodology of the Haz-Cat.    In light of the

uncontested testimony at trial regarding the contents of the

drums from which the pollutant was discharged, Wilson has not

shown that Bowen’s testimony was unreliable or irrelevant.         See

Vogler v. Blackmore, 352 F.3d 150, 154 (5th Cir. 2003).      Any

error in admitting Bowen’s testimony was harmless, given that

others testified that the barrels (1) contained garbage, (2) were

open when loaded onto the truck headed for the dump site, and (3)

were dumped into Greasy Creek.    See 33 U.S.C. § 1362(6).

     The offense of conviction required proof that Wilson

“knowingly” discharged a pollutant (or caused one to be

discharged) without a permit.    33 U.S.C. § 1311, 1319(c)(2)(A);

18 U.S.C. § 2(a).    Wilson argues that the “deliberate ignorance”

jury instruction was error because there was insufficient

evidence to indicate that he was aware of a high probability of

illegal conduct.    He also contends that there was insufficient

evidence to support the guilty knowledge element of his

conviction.   Trial testimony established that Wilson hired his

cousin, Tony Moreland, to dispose of the drums containing the

pollutant.    Moreland testified that Wilson asked him what he was

going to do with the barrels, but before he could answer, Wilson

said, “I don’t want to know.”    Environmental Protection Agency
                           No. 04-11060
                                -3-

Special Agent Green testified that Wilson admitted that he did

not know where Moreland was taking the drums but “indicated that

he had knowledge they were going to be disposed of illegally or

dumped somewhere.”   Given Wilson’s defense of lack of guilty

knowledge, the facts adduced at trial fall squarely within

“deliberate ignorance” territory.    When viewed in the light most

favorable to the Government, the evidence clearly raised the

inference that Wilson was aware of a high probability of the

criminal activity to be carried out by his coconspirator and that

he purposely contrived to avoid learning of the illegal conduct.

The district court did not abuse its discretion in giving the

deliberate ignorance instruction to the jury.    See United States

v. Newell, 315 F.3d 510, 528 (5th Cir. 2002).    Furthermore, the

evidence was sufficient to support the jury’s finding that Wilson

was criminally responsible for Moreland’s actions, having

willfully associated himself with the criminal venture.     See 18

U.S.C. § 2(a); United States v. Vasquez 953 F.2d 176, 183 (5th

Cir. 1992).

      Wilson’s final argument is that the district court erred in

using relevant conduct to calculate his sentence under the

guidelines.   He challenges, inter alia, the guideline used to

calculate his base offense level because it applied to offenses

involving “hazardous” substances rather than mere “pollutants.”

See U.S.S.G. §§ 2Q1.2, 2Q1.3; United States v. Goldfaden, 959

F.2d 1324, 1329 (5th Cir. 1992).    The Government concedes that
                           No. 04-11060
                                -4-

Wilson’s argument has merit because the district court based its

selection of the applicable guideline section on facts outside of

the allegations contained in the superseding indictment.   Under

the applicable harmless error analysis, the Government cannot

show “beyond a reasonable doubt that the Sixth Amendment Booker

error did not affect the sentence that the defendant received.”

See United States v. Pineiro, 410 F.3d 282, 284 & n.4, 286-87

(5th Cir. 2005).   Accordingly, Wilson’s sentence is VACATED, and

this case is REMANDED for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.
