                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-51107
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TIMOTHY WAYNE WETLESEN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 6:04-CR-110-ALL
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Timothy Wayne Wetlesen appeals his sentence imposed pursuant

to a plea of guilty to attempt to manufacture methamphetamine.

See 21 U.S.C. § 841(a)(1).   He argues that pursuant to United

States v. Booker, 543 U.S. 220 (2005), his case should be

remanded for resentencing because the district court erred in

sentencing him pursuant to the then-mandatory Sentencing

Guidelines.




     *
       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this opinion should not be published and is not precedent except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. 04-51107
                                -2-

     By sentencing Wetlesen under a mandatory guidelines regime,

the district court committed what this court refers to as Fanfan

error.   See United States v. Walters, 418 F.3d 461, 463-64 (5th

Cir. 2005).   The Government concedes that Wetlesen preserved his

Fanfan argument by raising an objection in the district court

pursuant to Blakely v. Washington, 542 U.S. 296 (2004).   Given

the district court’s statement that it would impose the same

sentence in the event the Guidelines were declared

unconstitutional, the Government has carried its burden of

demonstrating harmless error beyond a reasonable doubt.   See

e.g., United States v. Saldana, 427 F.3d 298, 314 (5th Cir.

2005), cert. denied, 2006 WL 37834 (Jan. 9, 2006).

     AFFIRMED.
