United States v. Wengler

* 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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-50266
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN WENGLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-03-CR-210-2-SS)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brian Wengler appeals his sentence, following his guilty-plea
conviction for conspiracy to manufacture methamphetamine. Wengler
contends that the district court erroneously decided that an upward
sentencing departure was warranted because his criminal history
score did not properly reflect the severity of his past criminal
behavior. Alternatively, Wengler claims that the extent of the
departure was unreasonable. Wengler contends for the first time on

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appeal that the departure violated his Sixth Amendment rights as
outlined in Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005).
Wengler has not shown that the decision to upwardly depart was
either unreasonable or an abuse of discretion. See United States
v. Simkanin, 420 F.3d 397, 416 (5th Cir. 2005); United States v.
Smith, 417 F.3d 483, 489 (5th Cir. 2005), cert. denied, 2005 WL
3027879 (U.S. 14 Nov. 2005) (No. 05-7063). The decision was
grounded in an acceptable basis. See 18 U.S.C. § 3553(a)(1).
Further, the extent of the departure was acceptable. See Smith,
417 F.3d at 492.
Nor has Wengler shown he should receive relief under Booker.
Because Wengler did not present this claim in district court, it is
reviewed only for plain error. See United States v. Saldana, Nos.
04-50527, 04-50591, 2005 WL 2404810, at *6 (5th Cir. 30 Sept.
2005). There is nothing in the record showing the district court
would have acted differently under an advisory Guidelines system.
See id. Therefore, Wengler has not shown his substantial rights
were violated. See id. at *7.
AFFIRMED

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