U.S. Court of Appeals for the Fifth Circuit, 2005

United States v. Cain

United States v. Cain
U.S. Court of Appeals for the Fifth Circuit · Decided June 3, 2005 · Davis, Smith, Dennis
133 F. App'x 143

United States v. Cain

Opinion

*144 PER CURIAM: *

Roderic Cain appeals his 151-month sentence on a conviction for possession with intent to distribute in excess of 1,000 kilograms of marijuana. 21 U.S.C. § 841(a)(1), (b)(1)(A). For the first time on appeal, Cain argues the district court’s determination of Cain’s base offense level based upon an estimated drug quantity of 4,000 kilograms of marijuana was unconstitutional under United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005).

Because Cain raises this argument for the first time on appeal, it is reviewed for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed, — U.S. -, — S.Ct. -,- L.Ed.2d -, No. 04-9517 (U.S. Mar. 31, 2005). Cain fails to demonstrate that the district court would have reached a significantly different result under an advisory guidelines scheme. See Mares, 402 F.3d at 521-22. Accordingly, Cain cannot establish plain error with respect to the district court’s base offense level. See id. The sentence of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

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