United States v. Gardner

131 F. App'x 973

Opinion

PER CURIAM: *

Stephen Alan Gardner challenges the validity of the sentences imposed upon his convictions for distribution of child pornography and possession of child pornography involving the sexual exploitation of minors. See 18 U.S.C. §§ 2252(a)(2), (a)(5)(B), (b)(1), & (b)(2), and 2256(8)(A). He argues that under United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the guidelines enhancements and upward departure from the guidelines violated his Sixth Amendment rights. Gardner has not shown, however, that the district court would have sentenced him differently under an advisory guidelines scheme rather than the mandatory scheme in place at the time he was sentenced. See United States v. Akpan, 407 F.3d 360, 377-78 (5th Cir.2005). He has therefore failed to show that the district court plainly erred. See United States v. Mares, 402 F.3d 511, 513 (5th Cir.2005).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.