United States v. Rigdon

135 F. App'x 728

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 18, 2005

Charles R. Fulbruge III Clerk No. 04-10464 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNIE LEE RIGDON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:03-CR-231-ALL --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Johnnie Lee Rigdon appeals the sentence imposed following

his jury conviction for being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1), 924(e). He argues that

the district court erred in increasing his offense level for

possession of firearms in connection with another felony offense

pursuant to U.S.S.G. § 2K2.1(b)(5). Rigdon’s possession of 1.9

grams of methamphetamine was a felony under Texas law. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115. The district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-10464 -2-

did not clearly err in increasing his offense level under

§ 2K2.1(b)(5) based on its determination that the firearms were

readily available to Rigdon and that they were possessed and

could have been used to facilitate his drug-related activities.

See United States v. Armstead, 114 F.3d 504, 511 (5th Cir 1997);

see also United States v. Washington, 340 F.3d 222, 231 (5th

Cir.), cert. denied, 124 S. Ct. 942 (2003).

Rigdon argues that the district court erred in enhancing his

offense level based on findings made by the judge and in imposing

his sentence pursuant to the mandatory guidelines system in view

of United States v. Booker, 125 S. Ct. 738 (2005). Because

Rigdon did not raise these arguments in the district court,

review is limited to plain error. United States v. Mares, 402

F.3d 511, 520 (5th Cir. 2005), petition for cert. filed, (U.S.

Mar. 31, 2005) (No. 04-9517). Thus, Rigdon must show: (1) an

error; (2) that is clear or plain; (3) that affected his

substantial rights; and (4) that seriously affected the fairness,

integrity, or public reputation of his judicial proceedings.

United States v. Olano, 507 U.S. 725, 732-35 (1993).

Rigdon has not shown that the error affected his substantial

rights as he has not shown that there is any “indication in the

record from the sentencing judge’s remarks or otherwise that

gives us any clue as to whether [he] would have reached a

different conclusion” regarding the sentencing increase under

§ 2K2.1(b)(5) under an advisory Booker system. See id. No. 04-10464 -3-

sentence based on his classification as an armed career criminal

pursuant to U.S.S.G. § 4B1.4(b)(3)(B) and 18 U.S.C. § 924(e). At

the sentencing hearing, Rigdon admitted the facts necessary to

establish that he was an armed career criminal subject to the

180-month mandatory minimum sentence under 18 U.S.C. § 924(e) and

§ 4B1.4(b)(3)(B). Therefore, there is no Booker violation based

on this enhancement. Further, Booker does not apply to

enhancements based on a defendant’s prior convictions. See

Booker, 125 S. Ct. at 756; see also United States v. Guevara,

F.3d , No. 03-11299 (5th Cir. May 2, 2005), 2005 WL 1009772 at

*6 (“Booker explicitly excepts from Sixth Amendment analysis” the

fact of a prior conviction).

Rigdon also argues that the district court erred by imposing

a sentence pursuant to a mandatory application of the sentencing

guidelines. The district court’s imposition of the sentence

based on the mandatory guideline system was error. See Booker,

125 S. Ct. at 768; see also Mares, 402 F.3d at 517-20 & n.9.

Rigdon 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 v. Valenzuela-

Quevedo, ___ F.3d ___, No. 03-41754, 2005 WL 941353 at *4 (5th

Cir. Apr. 25, 2005). Therefore, Rigdon has not met the No. 04-10464 -4-

requirements to establish plain error. See id.; see also Vonn,

535 U.S. at 59.

Rigdon also argues that the sentencing enhancements imposed

by the district court pursuant to the Guidelines violated his

rights under the Confrontation Clause, citing Crawford v.

Washington, 541 U.S. 36 (2004). The Confrontation Clause is not

applicable at sentencing. Crawford, 541 U.S. at 68-69; see also

United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).

AFFIRMED.