United States v. Presley

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10512
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARVIN CLARENCE PRESLEY
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:93-CR-99-2-K
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Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Marvin Clarence Presley appeals the sentence imposed
following the revocation of his supervised release. He argues
for the first time on appeal pursuant to Blakely v. Washington,
124 S. Ct. 2531 (2004), and United States v. Williams, 343 F.3d
423 (5th Cir.), cert. denied, 124 S. Ct. 966 (2003), that his
sentence should not have exceeded one year of imprisonment
because his underlying conspiracy conviction was only a Class E
felony.
*
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this opinion should not be published and is not precedent except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. 04-10512
-2-
Neither Blakely nor Williams, however, plainly supports the
determination urged by Presley either that 18 U.S.C. § 3553(b)(1)
creates an additional aggravated offense for every offense in the
United States Code or that the statutory maximum for purposes of
felony classification under 18 U.S.C. § 3559 is the top end of an
offender’s guideline range, as opposed to the maximum term of
imprisonment authorized by the statute. Consequently, Presley
has not demonstrated plain error on the part of the district
court. See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.
2000).
AFFIRMED.