United States v. Beshirs

190 F. App'x 344

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 21, 2006
• Docket: 05-41359
• Status: Unpublished

Opinion

PER CURIAM: *

Liza Lawonna Beshirs pleaded guilty to conspiracy to manufacture, distribute, or possess with intent to manufacture, distribute, or dispense methamphetamine. She appeals the sentence imposed following our remand to the district court for resentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Beshirs, 135 Fed.Appx. 685 (5th Cir.2005) (unpublished). The district court granted the Government’s Fed.R.CrimP. 35(b) motion and sentenced Beshirs to 81 months of imprisonment and four years of supervised release.

Beshirs argues that the district court’s determination to apply a two-level enhancement for possession of a firearm and a six-level increase for creating a substantial risk of harm to a minor in calculating the advisory guidelines range violated her Sixth Amendment rights. She concedes, however, that this court has approved this method of sentencing, and she does not challenge the reasonableness of the sentence imposed.

“The precise Sixth Amendment error identified in Booker is not the use of extra-verdict enhancements that increase a sentence; the constitutional error is that extra-verdict enhancements were being used under mandatory guidelines.” United States v. Holmes, 406 F.3d 337, 365 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 375, 163 L.Ed.2d 163 (2005). Because the district court considered the Guidelines as advisory when resentencing Beshirs, her Sixth Amendment argument is without merit.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.