United States v. Mack

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-41180
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEREK FRANDON MACK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-109-6-PNB
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Derek Frandon Mack appeals his guilty-plea conviction and
sentence for conspiracy to manufacture, distribute, or possess
with the intent to manufacture, distribute, or dispense 3,4-
Methylenedioxymethamphetamine, Methylenedioxy-methamphetamine,
methamphetamine, cocaine, and marijuana. He avers that his
sentence runs afoul of United States v. Booker, 125 S. Ct. 738
(2005) because he was sentenced under the mandatory guideline
scheme held unconstitutional in Booker. He also avers that the
*
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this opinion should not be published and is not precedent except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. 04-41180
-2-
district court’s denial of the acceptance-of-responsibility
adjustment violated Booker because the court denied the
adjustment based on findings that went beyond the facts admitted
by him. Mack further avers that the district court’s
determination that he was a career offender ran afoul of Booker
because he never admitted to the factual basis for the predicate
offenses.
In Mack’s case, there was no Sixth Amendment violation under
Booker because the only enhancement to his sentence was based on
his status as a career offender. See Booker, 125 S. Ct. at 756,
769; United States v. Guevara, 408 F.3d 252, 261 (5th Cir.
2005)(There is no Sixth Amendment violation with respect to post-
trial consideration of career offender status). Nor did the
district court’s denial of a reduction for acceptance of
responsibility implicate Booker. See United States v. De
Jesus-Batres, 410 F.3d 154, 163 n.2 (5th Cir. 2005).
The district court’s imposition of the sentence based on the
mandatory guideline system nonetheless was error. See Booker,
125 S. Ct. at 768; see also United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517). However, Mack has not shown that the district
court’s imposition of his sentence under the mandatory guidelines
system affected his substantial rights, as the record does not
indicate that the district court would have imposed a different
sentence under an advisory guidelines system. See United States
No. 04-41180
-3-
v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).
Therefore, Mack has not met the requirements to establish plain
error. See id.
The district court’s denial of an adjustment for acceptance
of responsibility permissibly relied upon the finding that Mack
failed to tell the probation officer that he received drugs other
than methamphetamine and marijuana from a co-conspirator. Mack
has failed to show that the district court’s denial of an
adjustment for acceptance of responsibility was without
foundation. See United States v. Washington, 340 F.3d 222, 227
(5th Cir. 2003). The judgment of the district court is AFFIRMED.