United States v. Thomas

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40064 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH WAYNE THOMAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:00-CR-25-4 -------------------- August 28, 2002

Before JOLLY, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Kenneth Wayne Thomas appeals the sentence that he received

following his plea of guilty to conspiracy to manufacture

methamphetamine. He asserts that the four-year term of

supervised release that he received was excessive in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the

indictment did not allege a drug quantity. Because Thomas did

not raise his challenge in the district court, review is for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40064 -2-

plain error. See United States v. Cotton, 122 S. Ct. 1781, 1785

(2002). Because the “essentially uncontroverted” evidence

presented during the plea proceedings and in the factual resume

supports the higher supervised-release term, no plain error

occurred. See id. at 1786-87; United States v. Longoria,

___ F.3d ___, 2002 WL 1497184 at *5 (5th Cir. July 12, 2002,

No. 00-50405)(en banc). Consequently, the judgment of the

district court is AFFIRMED.