United States v. Merrill , 128 F. App'x 393 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-30320
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNIE MERRILL, also known as Manny, also
known as Mannie,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-277-5-L
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Ronnie Merrill challenges the sentence he received following
his guilty-plea conviction for distributing less than 100 grams
of heroin and less than 50 grams of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1). He first argues that the waiver-of-
appeal provision in his plea agreement is unenforceable. Because
the record reveals that the district court did not specifically
advise Merrill that he had waived the right to appeal his
sentence as part of his plea, Merrill is correct that the waiver-
*
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this opinion should not be published and is not precedent except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. 04-30320
-2-
of-appeal provision in his plea agreement does not bar the
instant appeal. See FED. R. CRIM. P. 11(b)(1)(N); United States
v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).
Merrill next argues, for the first time on appeal, that the
adjustments he received for being a career offender and for
possessing a firearm under the Sentencing Guidelines violated his
constitutional rights following United States v. Booker, 125
S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531(2004). The argument is reviewed for plain error. United States
v. Mares, ___ F.3d ___, 2005 WL 503715 at *7 (5th Cir. Mar. 4,
2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,
2005).
In light of Booker, the district court erred in computing
Merrill’s sentence based on judicially determined facts under a
mandatory guidelines system, and that error was both plain and
obvious. Mares, 2005 WL 503715 at *7-*8. Nevertheless, because
Merrill has not demonstrated that the district court would have
reached a different conclusion had it known that the Guidelines
were advisory only, he has failed to demonstrate that the error
affected his substantial rights.** Id. at **8-9. Accordingly,
Merrill has failed to carry his burden of demonstrating plain
error, and the district court’s judgment is AFFIRMED.
**
Merrill’s argument that Mares was wrongly decided is
unavailing. Absent en banc reconsideration or a superseding
contrary decision of the Supreme Court, one panel may not
overrule the decision of a prior panel. United States v. Ruff,
984 F.2d 635, 640 (5th Cir. 1993).