United States v. Thomas , 158 F. App'x 623 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 15, 2005
Charles R. Fulbruge III
Clerk
No. 03-11174
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELDRIC WALKER THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-174-ALL-N
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Keldric Walker Thomas pleaded guilty to possession of a
firearm in furtherance of a drug trafficking crime and to
possession with intent to distribute 5 or more grams of crack
cocaine. He appeals his sentence on the drug possession offense,
arguing for the first time on appeal that the district court
erred by determining his guideline range based a greater quantity
of drugs than pleaded in the indictment, in violation of United
States v. Booker, 125 S. Ct. 738, 756 (2005). He also asserts
*
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this opinion should not be published and is not precedent except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. 03-11174
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for the first time that the district court erred in imposing a
sentence under a mandatory guideline scheme, also in violation of
Booker, 125 S. Ct. at 756-57.
This court reviews these arguments for plain error. See
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005); United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43(2005). Thomas’s first argument lacks merit; his guideline range
was based on the amount of drugs which he admitted. See Booker,
125 S. Ct. at 756.
Thomas argues that, based on the sentencing court’s comments
and on an independent review of the sentencing factors enumerated
in 18 U.S.C. § 3553(a), there is a reasonable probability that
the district court would have imposed a lesser sentence under an
advisory system.** There is nothing in the district court’s
remarks or otherwise in the record which gives any clue that the
district court would have imposed a different sentence under an
**
For the purpose of preserving the issues for further
review, Thomas argues that the substantial-rights prong must not
require proof by a preponderance of the evidence that the error
more likely than not affected the outcome of his sentence; that a
strict plain-error approach should not be applied because he
could not have anticipated the change to an advisory system made
by Booker; that this court should not focus too restrictively on
the sentencing court’s remarks; that Fanfan error is immune from
the substantial-rights prong of the plain error test because the
error is structural or that prejudice should be presumed; and
that this court should order a limited remand to determine the
likely sentence under the advisory guidelines, as was done in
Booker. These argument are foreclosed. See Mares, 402 F.3d at.
521; United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 194 (2005).
No. 03-11174
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advisory scheme. Congress has rejected the Sentencing
Commission’s reports regarding the sentencing-disparity issue
and, thus, the sentencing guidelines continue to treat cocaine
base offenses differently than powder cocaine offenses. See
United States v. Fonts, 95 F.3d 372, 373-375 (5th Cir. 1996);
U.S.S.G. § 2D1.1(c)(6). Indeed, the 100-to-1 ratio is mandated
by Congress in 21 U.S.C. § 841. See § 841(b)(1)(B). While 18
U.S.C. § 3553(a)(6) requires district courts to consider “the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct,” it is evident that Congress does not believe that
offenses involving crack cocaine and those involving cocaine
powder are similar conduct. See Fonts, 95 F.3d at 374 n.1.
There is nothing in the record, and Thomas points to nothing,
which indicates that the district court would, under an advisory
regime, reject Congress’s mandate, afford “great weight” to the
Sentencing Commission’s report regarding the differences in
sentencing of cocaine base and cocaine powder, and impose a
different sentence. Thomas committed a serious offense for which
Congress has mandated a serious sentence, see § 841(b)(1)(B), and
the district court stated specifically that it did not see
anything that would take Thomas’s case outside of the applicable
guideline range. At 28 years old, Thomas had a long record of
criminal behavior; his guideline range was doubled based solely
on his criminal history. There is nothing in the record to
No. 03-11174
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suggest any hesitation or discomfort on the district court’s part
in meting out the 123-month sentence. Thomas has not
demonstrated, as required by Valenzuela-Quevedo and Mares, to a
probability sufficient to undermine confidence in the outcome
that the district court would likely have sentenced him
differently under an advisory sentencing scheme. Thus, Thomas
has not met his burden of persuasion to show that the district
court’s imposition of the sentence was plain error. See
Valenzuela-Quevedo, 407 F.3d at 733; Mares, 402 F.3d at 521.
Thomas argues that his sentence is unreasonable within the
meaning of Booker because the Sentencing Commission has found
that the harsh treatment of crack cocaine offenders does not
satisfy 18 U.S.C. § 3553(a)(6)’s goal of avoiding unwarranted
sentencing disparities. In Booker, 125 S. Ct. at 765-66, the
Supreme the Court excised 18 U.S.C. § 3742(e), which statutorily
set forth the standards of appellate review of sentences, and
stated that the remaining statute implied a reasonableness
standard of review. Nevertheless, the Court cautioned explicitly
that it “expect[ed] reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised
below and whether it fails the ‘plain-error’ test.” 125 S. Ct.
at 769.
We have consistently applied plain-error review, rather than
determining whether a sentence is unreasonable, where a Booker
error has not been preserved in district court. E.g., United
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States v. Villegas, 404 F.3d 355, 358-59 (5th Cir. 2005); Mares,
402 F.3d at 520-22. Even if we were to review for
unreasonableness, it could not be said that Thomas’s sentence was
unreasonable. That Thomas was subjected to a longer sentence for
committing a crack cocaine offense than he would have faced for a
powder cocaine offense is neither rare nor unusual; as shown in
Fonts, this disparity in sentencing has been at issue for at
least 10 years. The United States Congress has rejected the
Sentencing Commission’s suggestion that this disparity is
disproportionately harsh. See Fonts, 95 F.3d at 373-75.
Accordingly, Thomas’s sentence is AFFIRMED.