United States v. Mack

140 F. App'x 591

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 15, 2005

Charles R. Fulbruge III Clerk No. 04-41180 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEREK FRANDON MACK,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:03-CR-109-6-PNB --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Derek Frandon Mack appeals his guilty-plea conviction and

sentence for conspiracy to manufacture, distribute, or possess

with the intent to manufacture, distribute, or dispense 3,4-

Methylenedioxymethamphetamine, Methylenedioxy-methamphetamine,

methamphetamine, cocaine, and marijuana. He avers that his

sentence runs afoul of United States v. Booker, 125 S. Ct. 738

(2005) because he was sentenced under the mandatory guideline

scheme held unconstitutional in Booker. He also avers that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41180 -2-

district court’s denial of the acceptance-of-responsibility

adjustment violated Booker because the court denied the

adjustment based on findings that went beyond the facts admitted

by him. Mack further avers that the district court’s

determination that he was a career offender ran afoul of Booker

because he never admitted to the factual basis for the predicate

offenses.

In Mack’s case, there was no Sixth Amendment violation under

Booker because the only enhancement to his sentence was based on

his status as a career offender. See Booker, 125 S. Ct. at 756,

769; United States v. Guevara, 408 F.3d 252, 261 (5th Cir.

2005)(There is no Sixth Amendment violation with respect to post-

trial consideration of career offender status). Nor did the

district court’s denial of a reduction for acceptance of

responsibility implicate Booker. See United States v. De

Jesus-Batres, 410 F.3d 154, 163 n.2 (5th Cir. 2005).

The district court’s imposition of the sentence based on the

mandatory guideline system nonetheless was error. See Booker,

125 S. Ct. at 768; see also United States v. Mares, 402 F.3d 511,

520 n.9 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517). However, Mack has not shown that the district

court’s imposition of his sentence under the mandatory guidelines

system affected his substantial rights, as the record does not

indicate that the district court would have imposed a different

sentence under an advisory guidelines system. See United States No. 04-41180 -3-

v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).

Therefore, Mack has not met the requirements to establish plain

error. See id.

The district court’s denial of an adjustment for acceptance

of responsibility permissibly relied upon the finding that Mack

failed to tell the probation officer that he received drugs other

than methamphetamine and marijuana from a co-conspirator. Mack

has failed to show that the district court’s denial of an

adjustment for acceptance of responsibility was without

foundation. See United States v. Washington, 340 F.3d 222, 227

(5th Cir. 2003). The judgment of the district court is AFFIRMED.