United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40747
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRESTON JOSEPH ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-189-TH-WCR-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Preston Joseph Robinson pleaded guilty pursuant to a written
plea agreement to possession with intent to distribute five grams
or more but less than 50 grams of cocaine base. He was sentenced
to 110 months of imprisonment, four years of supervised release,
and a $100 special assessment.
Robinson argues for the first time on appeal that the
district court erred by including, pursuant to the relevant
conduct provision of U.S.S.G. § 1B1.3(a)(2), an additional 15.4
*
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this opinion should not be published and is not precedent except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. 04-40747
-2-
grams of cocaine base in the calculation of his base offense
level because the finding of the additional drug amount was made
by the district court and was not made by a jury or admitted by
Robinson. He contends that, in light of the Supreme Court’s
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), the
use of the court’s finding of the additional drug amount in the
determination of his sentence violates the Fifth and Sixth
Amendments. As Robinson acknowledges, this issue is foreclosed.
See 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.