United States v. Bell ( 2006 )

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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                   June 29, 2006
Charles R. Fulbruge III
Clerk
No. 05-51380
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EDWARD BELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-254-2
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Robert Edward Bell was sentenced to a 240-month term of
imprisonment and a three-year term of supervised release for
conspiracy to manufacture methamphetamine.     Bell’s sentence was
vacated on appeal and the matter remanded for resentencing.          See
United States v. Bell, 148 F. App’x 194, 195 (5th Cir. 2005).           On
remand, the district court again imposed a 240-month term of
imprisonment.   Bell now appeals, challenging his sentence.
*
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this opinion should not be published and is not precedent except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. 05-51380
-2-
Bell argues that his sentence is unreasonable because the
district court erred in determining the drug quantity
attributable to him for sentencing.   He argues that the court
relied on the unsubstantiated and uncorroborated hearsay of an
informant.   Under the advisory Sentencing Guidelines scheme
mandated by United States v. Booker,

543 U.S. 220

 (2005), the
district court was entitled to find the facts to support the
sentence in the same manner as before Booker.    See United States
v. Alonzo,

435 F.3d 551

, 553-54 (5th Cir. 2006).    “‘The
sentencing judge is entitled to find by a preponderance of the
evidence all the facts relevant to the determination of a
Guideline sentencing range and all facts relevant to the
determination of a non-Guidelines sentence.’”    United States v.
Johnson,

445 F.3d 793

, 798 (5th Cir. 2006) (quoting United States
v. Mares,

402 F.3d 511

, 519 (5th Cir.) (internal citations
omitted), cert. denied,

126 S. Ct. 43

 (2005)).     Because the
district court’s drug quantity determination was plausible in the
light of the record as a whole, Bell has not demonstrated clear
error.   See United States v. Caldwell, __F.3d__, No. 05-30263,

2006 WL 1075594

, *1 (5th Cir. Apr. 25, 2006).
Bell challenges his sentence as unreasonable on grounds of
vindictiveness, arguing that it is harsher than the alternative
five-year sentence the district court imposed at his original
sentencing hearing and further arguing that the district court
did not sufficiently justify its decision not to impose the
No. 05-51380
-3-
alternative five-year sentence.     On resentencing, a sentencing
court may not impose a sentence that is harsher than the original
sentence unless the record shows that the harshness was not
motivated by vindictiveness.      United States v. Reinhart,

442 F.3d 857

, 859-60 (5th Cir. 2006); United States v. Vontsteen,

950 F.2d 1086

, 1088-89 & n.2 (5th Cir. 1992) (en banc); North Carolina v.
Pearce,

395 U.S. 711

, 726 (1969).     Because Bell did not object in
the district court to his sentence on grounds of vindictiveness,
review is for plain error.      See Vontsteen,

950 F.2d at 1089-93

.
This court has held that insofar as the district court had
predicated an alternative sentence on the unconstitutionality of
the Guidelines “in their entirety,” Booker had not triggered such
a scenario because rather than striking down the Guidelines in
toto, it declared them advisory only.        United States v. Adair,

436 F.3d 520

, 527-28 (5th Cir.), cert. denied,

2006 WL 1035494

(U.S. May 22, 2006) (No. 05-10430); see also United States v.
Walters,

418 F.3d 461

, 465-66 (5th Cir. 2005).       Bell’s argument
that his 240-month sentence is harsher than his first sentence
because it is harsher than the alternative five-year sentence--a
sentence that was not triggered by Booker--is unconvincing.
Because Bell has not shown that he received a harsher sentence
upon resentencing, he has not shown error, plain or otherwise.
Bell has failed to show that his 240-month sentence was
unreasonable.      See Alonzo,

435 F.3d at 554