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. 04-50456
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRVIN LEWIS DUKES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:02-CR-215-1-OG
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Irvin Lewis Dukes appeals his conviction and sentence for
conspiring to possess with intent to distribute more than five
kilograms of cocaine, aiding and abetting the possession of more
than 500 grams but less than five kilograms of cocaine, and
aiding and abetting the carrying, possessing, brandishing, and
discharging of a firearm during a drug-trafficking offense.
Given that no evidence exits that jurors saw Dukes handcuffed,
and in light of the district court’s curative instruction, the
district court did not abuse its discretion when it denied
*
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this opinion should not be published and is not precedent except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. 04-50456
-2-
Dukes’s motion for a mistrial. See United States v. Solis, 299
F.3d. 420, 441-42 (5th Cir. 2002); United States v. Honer, 225
F.3d 549, 555-56 (5th Cir. 2000); Hardin v. United States, 324
F.2d 553, 554 (5th Cir. 1963).
Dukes’s argument that the evidence was insufficient to
convict him of conspiracy to possess with intent to distribute
five kilograms of cocaine is unavailing. Detective Brittain’s
testimony provided evidence of a knowing and voluntary agreement
between two or more people to violate federal narcotics laws.
See United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996).
Dukes’s argument that the verdict is irreconcilable with the
district court’s sentence, which was based on only two kilograms,
fails because the Government was not required to prove that Dukes
was reasonably capable of producing the cocaine that he agreed to
deliver. See United States v. Turner, 319 F.3d 716, 721-22 (5th
Cir. 2003); Gonzales, 79 F.3d at 423.
Dukes’s argument that his sentence must be reversed in light
of Blakely v. Washington, 124 S. Ct. 2531 (2004), and United
States v. Booker, 125 S. Ct. 738 (2005), is raised for the first
time on direct appeal and is, therefore, reviewed for plain
error. See United States v. Cotton, 535 U.S. 625, 631, 32
(2002); United States v. Mares, ___ F.3d ___, No. 03-20135, 2005
WL 503715 at *7 (5th Cir. Mar. 4, 2005). Dukes fails to
establish plain error because he fails to carry his burden of
demonstrating that he would have received a different sentence
No. 04-50456
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had he been sentenced under the Booker advisory Guidelines regime
rather than the pre-Booker mandatory regime. See Mares, 2005 WL
503715 at *9.
De novo review of Dukes’s argument that the district court
erred when it increased his offense level under U.S.S.G.
§ 3A1.2(b)(1) reveals that it is unavailing in light of Officer
Litton’s testimony. See United States v. Villegas, ___ F.3d ___,
2005 WL 627963 at ** 4-5 (5th Cir. Mar. 17, 2005); United States
v. Ortiz-Granados, 12 F.3d 39, 42 (5th Cir. 1994). Dukes’s
argument that the district court’s application of U.S.S.G.
§ 3A1.2(b)(1) constituted double counting in violation of the
Double Jeopardy Clause also fails. See United States v. Hudson,
522 U.S. 93, 98 (1994).
AFFIRMED.