UNITED STATES of America, Plaintiff-Appellee, v. Brian WENGLER, Defendant-Appellant, 160 F. App'x 375

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 appeal that the departure violated his Sixth Amendment rights as outlined in Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) , and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, - U.S. -, 126 S.Ct. 713, - L.Ed.2d-, 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, 427 F.3d 298, 308 (5th Cir.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 308. AFFIRMED. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.