USA v. Dees, No. 04-11519 (5th Cir. 2006)
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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, interstate which images commerce. had Dees been argues shipped that and he transported was sentenced in 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2In 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.
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