1 Pursuant to 5 TH C IR

. R. 47.5, the Court has determi ned that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 21 U.S.C. § 843(a)(6 ) provides that it is “unlawful for any

person knowing ly or intentionally . . . to possess any . . .

chemical, product, or material which may be used to manufacture a

controlled substance or listed chemical, knowing, intending, or

having reasonable cause to believe, that it will be used to

manufacture a controlled substance.” 21 U.S.C. § 843(a)(6) (2005). United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-50761

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES DENNIS RUCKER,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:03-CR-39-1

_________________________________________________________________

Before JOLLY, SMITH, and GARZA, Circuit Judges.

PER CURIAM: 1

Charles Dennis Rucker pleaded guilty to the unlawful

possession of anhydrous ammonia in violation of 21 U.S.C. §

843(a)(6). 2 Because of B lakely v. Washington

, 542 U.S. 296 (2004),

but over Rucker’s objection, the district court sentenced Rucker to

three alternate sentences: (1) 88 months of imprisonment, 3 years

of supervised release, a fine of $1,000, and a $100 special2

assessment if the Guidelines remain int act; (2) 10 months of

imprisonment (supervised release, fine and special assessment

remain the same) if the Guidelines were found unconstitutional as

to upward departures and rele vant conduct under B lakely v.

Washington ; and (3) 7 years of imprison ment (supervised release,

fine and special assessment remain the same) should the Guidelines

be found unconstitutional. Rucker contends on appeal that the

district court erred in two ways: first, by applying the

enhancement of U.S.S.G. § 2D1.1(b)(1), allowing a two-point

increase in the base offense level for possession of a firearm, and

second, in its consideration of the Guidelines as constitutional.

For the reasons stated below we VACATE Rucker’s sentence and REMAND

for resentencing not inconsistent with this opinion.

I

Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level is

increased by two levels, “[i]f a dangerous weapon (including a

firearm) was possessed.” The commentary to § 2D1.1(b)(1) states,

“[t]he adjustment should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with

the offense. For example, the enhancement would not be applied if

the defendant, arrested at his residence, had an unloaded hunting

rifle in the closet.” U.S.S.G. § 2D1.1(b)(1), comment, n.3. “The

district court’s decision to apply § 2D1.1(b)(1) is essentially a

factual determination reviewable under the clearly erroneous3 The clear- error standard survives U nited States v. Booker

,

543 U.S. 220 (2005)

. United States v. Villanueva , 408 F.3d 193,

203 n.9 (5th Cir. 2005) (internal citations omitted).

4 During a search of Rucker’s home officers recovered a New

Haven .22 caliber rifle, a Savage .30-30 bolt action rifle, and a

Stevens .410 gauge shotgun located in the back bedroom.

5 Rucker’s girlfriend testified that the syringes belonged to

her diabetic daughter and that she had never spoken to Lieutenant

3 standard.” 3 U nited States v. Rodriguez

, 62 F.3d 723, 724 (5th Cir.

1995). If a factual finding is plausible in the light of the

record as a whole, there is no clear error. U nited States v.

Parker , 133 F.3d 322, 330 (5th Cir. 1998).

Rucker argues that the § 2D1.1(b)(1) enhancement was error as

the weapons 4 were in a bedroom separate from the detached garage

where the illegal activity took place. He argues that no evidence

of manufacturing of any drugs was found in the house, and that the

weapons found in the bedroom were “essentially hunting rifles.”

The evidence upon which the district court relied in applying

the enhancement w as as follows: First, Lieutenant Medford

testified at sentencing that no drugs were found inside the house.

However, he also tes tified that the government knew drugs had

previously been in the house based on the testimony of Rucker’s

girlfriend that she had flushed some down the toilet. Further,

Medford testified that Rucker’s g i rlfriend stated that Rucker

normally manufactured methamphetamine in both the detached and

attached garages. Finally, Medford testified that certain drug

paraphernali a, specifically syringes, were found in the kitchen. 5Medford.

4

Additiona lly, the presentence report noted that, according to a

“concerned citizen,” Rucker normally kept a handgun close to him

and had made statements about “shooting people.”

Based on the above evidence the district court did not clearly

err in concluding that it is not “clearly improbable” that the

firearms were connected to Rucker’s offense. Consequently, the

district court did not clearly err in applying the § 2D1.1

enhancement.

II

The sentencing in this case took place before the Supreme

Court’s decision in United States v. Booker , 543 U.S. 220 (2005).

Based on the Supreme Court’s analysis under the Sixth Amendment,

Booker severed the p ortions of the Sentencing Reform Act that

mandated sentencing and appellate review in conformance with the

Guidelines. I d. at 756-57, 764-65. Consequently the Guidelines

were rendered “effectively advisory.”

In United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005)

cert. denied

, 126 S.Ct. 43 (2005), this Court addressed the

application of Booker

, holding that in cases where Booker error was

preserved, “we will ordinarily vacate the sentenc e and remand,

unless we can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.” I d. at 520 n.9. A review of

the record es tablishes that Rucker timely raised a B lakely5

objection to his sentence which effectively preserved Booker error

for appellate review. U nited States v. A kpan , 407 F.3d 360, 376

(5th Cir. 2005). The question thus becomes whether the district

court’s error in considering the Guidelines mandatory was harmless.

The district court imposed three alternative sentences.

Although we may speculate which sentence the district court would

impose, this court has recognized that mere speculation fai ls to

satisfy a harmless error standard of review. S ee

, e.g.

, United

States v. Pineiro

, 410 F.3d 282, 287 (5th Cir. 2005) (applying the

harmless error standard in a claim of Booker error and holding that

the government must bear the burden “of showing beyond a reasonable

doubt that the district court would have imposed the same sentence

under an advisory scheme.”). As the government correctly concedes

that it cannot demonstrate harmless error, resentencing in light of

Booker is appropriate.

III

For the above stated reasons Rucker’s sentence is VACATED, and

the case is REMANDED for resentencing.

VACATED and REMANDED.