United States v. Fobbs , 136 F. App'x 652 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-30535
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMOND JERED FOBBS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CR-20067-2
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Demond Jered Fobbs pleaded guilty to conspiracy to
distribute cocaine base and was sentenced as a career offender to
a 300-month term of imprisonment. Fobbs argues on appeal that
his enhanced sentence is unconstitutional in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000). We review this argument for plain error
because Fobbs did not make a Sixth Amendment objection in 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this opinion should not be published and is not precedent except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. 04-30535
-2-
district court. United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
As Fobbs does not suggest that his sentence was enhanced
based on any fact other than a prior conviction, he has not shown
that his sentence violates Booker or the Sixth Amendment. See
Booker, 125 S. Ct. at 750, 769. We agree with Fobbs that the
district court erred when it sentenced him pursuant to a
mandatory guidelines system. Id. at 750, 768-69. Nevertheless,
as the record does not suggest in any way that the district court
would have imposed a different sentence had it been aware that
the sentencing guidelines are merely advisory, Fobbs has not met
his burden of establishing plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
AFFIRMED.