United States v. Thomas

* 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this opinion should not be published and is not precedent except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
June 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN EARL THOMAS, also known as Wino,
also known as Max,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-78-10-N
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
John Earl Thomas, in reliance on Blakely v. Washington,
124 S. Ct. 2531 (2004), argues that the district court plainly
erred in imposing a sentence based on facts not alleged in the
indictment, not admitted by him in court, and not proved to a
jury beyond a reasonable doubt. Thomas challenges on Blakely
grounds the district court’s findings that he be held accountable
for sentencing purposes for 612.6 grams of cocaine base and that
he be held accountable for possession of a firearm.

-- 1 of 2 --

No. 04-10128
-2-
To demonstrate plain error, Thomas has the burden of showing
an error that is obvious and that affects his substantial rights.
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517). To show
that the error affected his substantial rights, Thomas has the
burden of demonstrating that “the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.” Id. at 521 (citation
omitted). Thomas has not shown that the district court would
have imposed a different sentence. Accordingly, we AFFIRM the
judgment of the district court.

-- 2 of 2 --