United States v. Luong , 207 F. App'x 471 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 1, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-51557
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
MICHAEL LUONG,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-88-2
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Michael Luong was convicted of one count of conspiracy to possess 100 kilograms or more
of marijuana with intent to distribute and one count of money laundering. The district court
sentenced him to serve 292 months in prison on the former charge and 240 months on the latter
charge. Luong now appeals 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-51557
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Luong argues that the sentencing procedures violated his rights under the Indictment Clause
and that this court’s jurisprudence following United States v. Booker, 543 U.S. 220 (2005), has
effectively rendered the Guidelines mandatory. Luong has not shown plain error with respect to these
arguments. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert. denied,
126 S. Ct. 267 (2005). Luong’s arguments concerning the Ex Post Facto and Confrontation Clauses
are, as he concedes, foreclosed. See United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir.
2005); United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).
Luong presented no evidence to rebut the facts contained in the PSR and has failed to show
that the district court plainly erred by relying on those facts to determine his relevant conduct at
sentencing. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); United States v.
Betancourt, 422 F.3d 240, 248 (5th Cir. 2005). Luong’s use of marijuana betwixt rearraignment and
sentencing provides a sufficient foundation for the district court’s denial of his requested adjustment
for acceptance of responsibility. See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002);
United States v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990). Luong has shown no error in relation
to the district court’s imposition of an adjustment to the offense level for his money laundering
offense, as his sentence for this offense was within statutory limits. See Valenzuela-Quevedo, 407
F.3d at 732-33.
The judgment of the district court is AFFIRMED.
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