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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005 Charles R. Fulbruge III Clerk No. 04-30681 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HERBERT PEA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:03-CR-50013-SMH-7 -------------------- Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges. PER CURIAM:* Herbert Pea appeals his sentence following his guilty-plea conviction for conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base. He argues for the first time on appeal that his sentence violated United States v. Booker,
125 S. Ct. 738(2005). The district court’s enhancement of Pea’s sentence based upon drug amounts not charged in the indictment and his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-30681 -2- possession of a firearm during the offense was plainly erroneous because those facts were not proven to a jury or admitted by Pea. See
Booker, 125 S. Ct. at 756, 764-65; United States v. Mares,
402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Pea has not shown, however, that the error affected his substantial rights. See
Mares, 402 F.3d at 520-21. Pea argues that he does not have to show that the error affected his substantial rights because the error is structural or because the error should be presumed prejudicial. These arguments are foreclosed. See United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005) (No. 05-5297). AFFIRMED.
Document Info
Docket Number: 04-30681
Citation Numbers: 140 F. App'x 592
Judges: Benavides, Clement, Per Curiam, Prado
Filed Date: 8/18/2005
Precedential Status: Non-Precedential
Modified Date: 8/2/2023