United States v. Dees

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11519
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS NELSON DEES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-69-ALL-Y
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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.

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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.

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