United States v. Presley

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 30, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-10512 Summary Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. MARVIN CLARENCE PRESLEY Defendant - Appellant -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:93-CR-99-2-K -------------------- Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges. PER CURIAM:* Marvin Clarence Presley appeals the sentence imposed following the revocation of his supervised release. He argues for the first time on appeal pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Williams, 343 F.3d 423 (5th Cir.), cert. denied, 124 S. Ct. 966 (2003), that his sentence should not have exceeded one year of imprisonment because his underlying conspiracy conviction was only a Class E felony. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-10512 -2- Neither Blakely nor Williams, however, plainly supports the determination urged by Presley either that 18 U.S.C. § 3553(b)(1) creates an additional aggravated offense for every offense in the United States Code or that the statutory maximum for purposes of felony classification under 18 U.S.C. § 3559 is the top end of an offender’s guideline range, as opposed to the maximum term of imprisonment authorized by the statute. Consequently, Presley has not demonstrated plain error on the part of the district court. See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). AFFIRMED.