United States v. Moses , 140 F. App'x 572 ( 2005 )


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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 16, 2005
    Charles R. Fulbruge III
    Clerk
    No. 04-51449
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DANIEL KELLY MOSES,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:04-CR-136-ALL
    --------------------
    Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
    PER CURIAM:*
    Daniel Kelly Moses appeals the sentence imposed following
    his guilty plea conviction for attempting to manufacture
    methamphetamine.   Moses argues that the district court erred
    under United States v. Booker, 
    125 S. Ct. 738
    (2005), by applying
    the sentencing guidelines as mandatory and that the district
    court erred by assigning him four criminal history points for two
    prior convictions.    Moses asserts that he should have received a
    *
    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    this opinion should not be published and is not precedent except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. 04-51449
    -2-
    total of two criminal history points for these two convictions
    because they are related cases.
    We review for plain error.    See United States v. Valenzuela-
    Quevedo, 
    407 F.3d 728
    , 732 (5th Cir. 2005), petition for cert.
    filed (July 25, 2005) (No. 05-5556).   Moses has not established
    plain error with respect to the district court’s mandatory
    application of the sentencing guidelines because he has not met
    his burden to show that the district court would have imposed a
    significantly different sentence under an advisory guidelines
    scheme.    See United States v. Holmes, 
    406 F.3d 337
    , 365-66 (5th
    Cir. 2005), petition for cert. filed (July 1, 2005) (No. 05-38).
    Moses also has failed to show that the district court
    plainly erred in calculating his criminal history score.   On the
    same day that Moses was sentenced for a 2002 possession of
    cocaine offense, the terms of his probation for a 2001 possession
    of cocaine offense were amended.   Despite Moses’s argument to the
    contrary, this does not establish that these two cases were
    related.   See United States v. Compian-Torres, 
    320 F.3d 514
    , 516
    (5th Cir. 2003); United States v. Husky, 
    137 F.3d 283
    , 288 (5th
    Cir. 1998).
    AFFIRMED.
    

Document Info

Docket Number: 04-51449

Citation Numbers: 140 F. App'x 572

Judges: Benavides, Clement, Per Curiam, Prado

Filed Date: 8/16/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024