United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-20852
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN ALAN GARDNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-177-ALL
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Alan Gardner challenges the validity of the
sentences imposed upon his convictions for distribution of child
pornography and possession of child pornography involving the
sexual exploitation of minors. See 18 U.S.C. §§ 2252(a)(2),
(a)(5)(B), (b)(1), & (b)(2), and 2256(8)(A). He argues that
under United States v. Booker, 125 S. Ct. 738 (2005), and Blakely
v. Washington, 124 S. Ct. 2531 (2004), the guidelines
enhancements and upward departure from the guidelines violated
*
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this opinion should not be published and is not precedent except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. 04-20852
-2-
his Sixth Amendment rights. Gardner has not shown, however, that
the district court would have sentenced him differently under an
advisory guidelines scheme rather than the mandatory scheme in
place at the time he was sentenced. See United States v. Akpan,
F.3d , No. 03-20875, 2005 WL 852416 at *13 (5th Cir. Apr.
14, 2005). He has therefore failed to show that the district
court plainly erred. See United States v. Mares, 402 F.3d 511,
513 (5th Cir. 2005).
AFFIRMED.