United States v. Rhine

May 7, 2009

08-10502

Versions:583 F.3d 878

329 F. App'x 513

2009 WL 3086574

Matthew Kyle Belcher, Federal Public Defender‘s Office Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

PER CURIAM:^*

Curtis Oneal Rhine pleaded guilty without a written plea agreement to one count of possession with intent to distribute crack cocaine and one count of possession of a firearm by a felon. See 21 U.S.C. § 841(a)(1) and (b)(1)(C); 18 U.S.C. §§ 922(g)(1), 924(a) and 2. Rhine argues that the district court erred in attributing five kilograms of crack cocaine to him as relevant conduct. See U.S.S.G. §§ 1B1.3(a)(1). The district court made the factual finding that the quantities in the count of conviction and in the challenged relevant conduct were related. Given the evidence in the record linking the two quantities, we cannot say that the district court‘s finding was clearly erroneous. See United States v. Alford, 142 F.3d 825, 831-32 (5th Cir.1998).

Rhine further argues that the relevant conduct finding by the district court was neither admitted by him nor proven beyond a reasonable doubt and, for this reason, infringed upon his Sixth Amendment rights. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a guideline sentencing range.” United States v. Johnson, 445 F.3d 793, 798 (5th Cir.2006). Rhine‘s argument that his statutory maximum sentence was unreasonable because his guidelines range was not properly calculated in violation of the Sixth Amendment is without merit. See United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.2006).

AFFIRMED.

Notes

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.