USA v. Shipp

Filing 920070306

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 6, 2007 Charles R. Fulbruge III Clerk No. 06-50652 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABRIEL LEE SHIPP, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CR-37-ALL -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Gabriel Lee Shipp appeals the 151-month sentence imposed following his guilty-plea conviction for possession with intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine. This court

reviews the district court's interpretation and application of federal Sentencing Guidelines de novo. 233 F.3d 845, 852 (5th Cir. 2000). Shipp's sentence was determined, in part, by application of the guideline for methamphetamine (actual). Shipp argues that United States v. Sprick,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50652 -2the district court violated his right to due process by applying this guideline when there exists a guideline for mixtures. contends that concern for the uniform application of the guidelines and the rule of lenity weigh in favor of application of the guideline for mixtures. There is a rational basis for the different treatment of methamphetamine (actual) and methamphetamine under the Sentencing Guidelines, and the Guidelines do not violate due process in this regard. 2006). See United States v. Molina, 469 F.3d 408, 413 (5th Cir. The methamphetamine guidelines are not subject to Id. Shipp has not shown error. He

arbitrary application.

Shipp also contends that his Sixth Amendment rights were violated by the determination of his sentence under the guideline for methamphetamine (actual) given that he was convicted for possessing a mixture and substance containing methamphetamine. The Guidelines provide that, "[i]n the case of a mixture or substance containing . . . methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the . . . methamphetamine (actual), whichever is greater." § 2D1.1(c) n.B.

Under the Guidelines, then, the application of the guideline for methamphetamine (actual) is a product of a factual finding by the district court, which does not violate the Sixth Amendment after United States v. Booker, 543 U.S. 220 (2005). See United States

No. 06-50652 -3v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). Shipp has failed to demonstrate error.

Finally, Shipp argues that the district court erred in considering methamphetamine amounts as relevant conduct that were not admitted by him or charged in the information. Shipp

concedes that, under United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006), the district court was permitted to make factual findings concerning relevant conduct without judicial admission or a jury finding. He contends, however, that Alonzo was wrongly

decided, and he wishes to preserve the issue for Supreme Court review. Absent an en banc determination or Supreme Court decision to the contrary, Alonzo is binding. F.3d 241, 243 (5th Cir. 2002). See United States v. Stone, 306

Accordingly, Shipp's contention

that the district court erred in considering facts not admitted by him or charged in the information is unavailing. AFFIRMED.