United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 2, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-50648
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GREGORY BEN,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. 1:04-CR-36-1-SS
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court initially affirmed the sentence of Gregory Ben.

United States v. Ben, No. 04-50648, 

(5th Cir.

Dec. 17, 2004).     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125 S.

Ct. 738 (2005).     Ben v. United States, 

(2005). We

requested and received supplemental letter briefs addressing the

impact of Booker.


     *
       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this opinion should not be published and is not precedent except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. 04-50648
                                -2-

     Ben argues that he is entitled to resentencing because the

district court applied facts that were neither admitted by him

nor found by a jury beyond a reasonable doubt to arrive at his

sentence of 120 months of imprisonment.   The problem in this case

is that Ben first asserted this argument, relying on Blakely v.

Washington, 

(2004), in a Federal Rules of Criminal

Procedure Rule 35(a) motion filed after entry of judgment and

sentencing.   This court has not decided whether a

Blakely/Booker/Fanfan objection asserted in a Rule 35(a) motion

constitutes a timely preservation of the claim under Rule 52(a).

The government does not dispute in its supplemental letter brief

that Ben’s objection has been preserved, and therefore, for the

purposes of this case, we will assume without actually deciding

that Ben preserved the Booker error.   Accordingly, our review for

harmless error under Rule 52(a), and the burden is on the

government to show harmless error beyond a reasonable doubt.     See

United States v. Walters, 

, 463-64 (5th Cir. 2005);

United States v. Pineiro, 

, 284-85 (5th Cir. 2005)

(holding that preserved Booker error is reviewed for harmless

error).

     The district court, in denying Ben’s Rule 35 motion for

reconsideration of sentencing, noted that even if Blakely applied

to Ben’s sentence, his sentence would remain the same: the

statutory maximum for a violation of the felon-in-possession-of-a

firearm statute.   The court noted that Ben’s criminal history was
                            No. 04-50648
                                 -3-

under-represented and that he had almost twice as many points as

required for a criminal history category VI.    Thus, the court

reasoned that an upward departure under U.S.S.G. § 4A1.3 was

warranted to bring Ben’s sentence up to 120 months, the

“appropriate sentence” for his offense.    Under these facts, the

government has met its burden of showing harmless error beyond a

reasonable doubt.    Accordingly, the judgment of the district

court is AFFIRMED.