United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-10137
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CYNTHIA FULLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-150-ALL-Y
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Cynthia Fuller appeals the sentence she received pursuant to
her guilty-plea conviction for possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). Fuller argues that her sentence of 57 months
violates the Eighth Amendment prohibition against cruel and
unusual punishment because the enhancement of her sentence for
possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1)
rendered it grossly disproportionate to her offense.
*
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that this opinion should not be published and is not precedent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.
No. 04-10137
-2-
We review Fuller’s objections for plain error because she
raises them for the first time on appeal. See United States v.
Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994). Fuller’s sentence
is not grossly disproportionate to her crime and therefore does
not violate the Eighth Amendment. See United States v. Gonzales,
121 F.3d 928, 942-44 (5th Cir. 1997).
Fuller also argues for the first time on appeal that the
increase of her sentence due to her possession of a firearm was
improper under Blakely v. Washington, 124 S. Ct. 2531, 2537
(2004), because that fact was not alleged in the indictment and
not found beyond a reasonable doubt by the district court or
admitted by her. This contention is foreclosed by United States
v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert.
filed (U.S. July 14, 2004) (No. 04-5263).
AFFIRMED.