United States v. Lowe

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 6, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 05-60327
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARWIN DJUNA LOWE,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
USDC No. 3:04-CR-173-ALL
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Darwin Djuna Lowe appeals his sentence imposed following a plea of guilty to three counts
of possessing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Lowe
contends that the district court erred in sentencing him based on facts not admitted by him or found

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by a jury. Lowe was sentenced, however, after the Supreme Court issued United States v. Booker,
125 S.Ct. 738 (2005). The transcript of the sentencing proceedings reveals that the parties debated
the reasonableness of the sentence recommended by the United States Sentencing Guidelines and that
the district court was aware of its ability to sentence outside of the Guidelines range. Contrary to
Lowe’s contention, Booker requires the district court to determine the Guidelines range in the same
manner as before Booker, including “finding all facts relevant to sentencing.” United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). Whereas in this case the Guidelines were not applied in a
mandatory fashion, such fact finding does not violate the Sixth Amendment. Id.
Accordingly, the judgment of the district court is AFFIRMED.

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