United States v. Walker

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 19, 2005

Charles R. Fulbruge III
Clerk
No. 03-50923
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

TILMON BERNARD WALKER, also known as Tilman Walker,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
(EP-02-CR-1736-1-DB)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Tilmon Bernard Walker appeals his

convictions for conspiring to (1) import five kilograms or more of

a mixture and substance containing cocaine (Count One), (2) possess

five kilograms or more of a mixture and substance containing

cocaine (Count Two), and (3) transport or transfer United States

currency outside the country with the intent to promote a

conspiracy to import a controlled substance (Count Three). He was

sentenced to concurrent terms of 262 months of imprisonment on all

counts.

*
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this opinion should not be published and is not precedent except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.
 Walker first contends that the evidence was insufficient to

sustain his conviction on Count Three. Given the evidence

that Walker recruited Ricardo Valencia to participate in drug

transactions and that Walker’s girlfriend, Rene Miller, delivered

$6,250 to Valencia in Mexico in exchange for cocaine, the evidence

was sufficient to support Walker’s conviction for conspiring to

violate 18 U.S.C. § 1956(a)(2)(A). See United States v.

Villarreal, 324 F.3d 319, 322 (5th Cir. 2003); United States v.

Virgen-Moreno, 265 F.3d 276, 284 (5th Cir. 2001).

Walker next asserts that the district court violated his right

to counsel by striking a post-trial motion for acquittal. Walker

concedes that the attorneys who filed the motion had not enrolled

as his counsel, and the record reflects that Walker was at all time

represented by counsel. Accordingly, we reject Walker’s contention

that the district court abridged his right to counsel by striking

the motion. See United States v. Taylor, 933 F.2d 307, 311 (5th

Cir. 1991).

Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004),

Walker argues that the district court violated the Sixth Amendment

by failing to submit the question of various sentence-enhancing

determinations to the jury. Walker filed his brief prior to the

decision in United States v. Booker, 125 S. Ct. 738, 749-50 (2005),

in which the Supreme Court held that the system of enhancements

established by the United States Sentencing Guidelines (“ U.S.S.G.”)

violates the Sixth Amendment as construed in Blakely. As Walker did
not raise this issue in the district court, however, we review it

for plain error only. See United States v. Mares, F.3d (5th

Cir. 2005), 2005 WL 503715 *7. A review of the record reveals no

indication that the district court would have imposed a shorter

sentence had it been sentencing under the Booker advisory regime

rather than the pre-Booker mandatory regime. As Walker cannot

demonstrate that his substantial rights were affected, he cannot

satisfy the plain error standard. See id. at *8.

Walker argues next that the district court erred in increasing

his offense level by four under U.S.S.G. § 3B1.1(a) for being a

leader or organizer of the offense. The evidence adduced at trial

shows that Walker recruited accomplices, made decisions regarding

the criminal activity, exercised authority over others, and claimed

the profits of the cocaine transactions. The finding that Walker

was a leader or organizer is plausible in light of the record as a

whole, so the district court did not err —— plainly or clearly ——

in increasing Walker’s offense level by four levels under U.S.S.G.

§ 3B1.1(a). See United States v. Cluck, 143 F.3d 174, 180 (5th Cir.

1998).

The judgment of the district court is

AFFIRMED.