United States v. Bell

* 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this opinion should not be published and is not precedent except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
March 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50532
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY MACK BELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-254-4
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jimmy Mack Bell appeals the sentence imposed following his
guilty-plea conviction for conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Bell
argues that the district court clearly erred in not sustaining
his objection to the Presentence Report (PSR) concerning the
amount of methamphetamine involved in the offense. Bell has not
demonstrated that the information contained in the PSR and Agent
Chuck Borgeson’s testimony was materially untrue, inaccurate, or

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unreliable. See United States v. Alford, 142 F.3d 825, 831-32
(5th Cir. 1998); United States v. Angulo, 927 F.2d 202, 205 (5th
Cir. 1991). Bell has not shown that the district court’s
determination that the offense involved the equivalent of 12,000
kilograms of marijuana was clearly erroneous. See United States
v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied,
126 S. Ct. 268 (2005).
Bell also argues that the district court violated his Sixth
Amendment rights by enhancing his sentence based on his
possession of a firearm, a fact that was not admitted by him.
Although Bell objected to the firearm sentencing enhancement in
the district court, he concedes that he did not raise a Sixth
Amendment claim in the district court. Therefore, review is
limited to plain error. See United States v. Mares, 402 F.3d
511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Bell has not shown that the district court’s enhancement of
his sentence based on his possession of a firearm was a “clear
and obvious” error. The sentencing hearing was held after the
Supreme Court issued its decision in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005). The district court determined
that the enhancement was applicable based on Agent Borgeson’s
testimony at the sentencing hearing that two individuals, Billy
White and Jennifer Blazy, saw Bell in possession of a shotgun in
October 2003, when Bell and a codefendant were manufacturing
methamphetamine. The district court granted the Government’s

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motion for a downward departure based on Bell’s substantial
assistance and imposed 120 months of imprisonment, one month less
than the minimum sentence within the applicable guidelines range.
Bell has not shown that the district court’s enhancement of his
sentence based on his firearm possession was based on a
misapplication of the Guidelines or was unreasonable. See United
States v. Alonzo, ___F.3d ___, 2006 WL 39119 at *3 (5th Cir. Jan.
9, 2006)(No. 05-20130).
AFFIRMED.

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