United States v. Spykes

1 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that this opinion should not be published and is not precedent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
February 9, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40778
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE SANFORD SPYKES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:01-CR-44-3
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Eddie Sanford Spykes (Spykes) appeals the sentence imposed
after his plea of guilty to one count of conspiring to manufacture
methamphetamine between 1988 and 2001. He contends that the
district court erred by applying the 1998 edition of the Sentencing
Guidelines to relevant conduct that occurred in 1988. He did not
object to the edition of the guidelines used in the district court,
so we review only for plain error. See United States v. Krout, 66
F.3d 1420, 1434 (5th Cir. 1995).

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2
The record refutes Spykes’s contention that the district court
applied U.S.S.G. § 2D1.11, a guideline that did not take effect
until 1991. Spykes benefitted when the district court declined to
apply the 2002 edition of guidelines due to ex post facto concerns
about a provision that would have raised Spykes’s offense level.
See U.S.S.G. § 1B1.11(b)(1). The district court’s application of
guidelines that were in effect during the conspiracy was not a
clear or obvious error that affected Spykes’s substantial rights.
See U.S.S.G. § 1B1.11, comment. (n.2); United States v. Thomas, 12
F.3d 1350, 1370-71 (5th Cir. 1994). The judgment of the district
court is AFFIRMED.
AFFIRMED.

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