United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 04-30499
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN EDWARD MILLER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CR-132-6-B
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Alvin Edward Miller, Jr., appeals his conditional guilty-
plea conviction and sentence for conspiracy to distribute more
than five kilograms of cocaine and possession with the intent to
distribute more than 500 grams of cocaine. Miller argues that
the district court erred in denying his motion to suppress
evidence seized from his vehicle. Specifically, Miller contends
that the anonymous tip leading to his arrest was unreliable and
*
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that this opinion should not be published and is not precedent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. 04-30499
-2-
therefore failed to establish the requisite reasonable suspicion
to justify the traffic stop.
Contrary to Miller’s assertion, the information provided by
the anonymous caller concerned Miller’s involvement in an active
drug transaction. Furthermore, the investigating officers took
steps to test and verify the information provided by the caller.
Under the “totality of the circumstances,” the information
provided by the anonymous tipster, coupled with Miller’s
subsequent suspect behavior, established sufficient reasonable
suspicion that criminal activity was afoot. See Alabama v.
White, 496 U.S. 325, 330-31 (1990); United States v. Gonzalez,
190 F.3d 668, 672 (5th Cir. 1999). Accordingly, the district
court did not err in denying Miller’s motion to suppress. See
United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and
by presumed extension, United States v. Booker, 125 S. Ct. 738
(2005),** Miller asserts that his sentencing enhancements under
21 U.S.C. § 851(a) and for relevant drug-quantity conduct are
unconstitutionally excessive. As Miller failed to raise this
claim in the district court, our review is for plain error.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir.),
petition for cert. filed, No. 04-9517 (U.S. Mar. 31, 2005).
**
Miller has not supplemented his original Blakely argument
with a discussion of Booker’s impact on his case.
No. 04-30499
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For purposes of Miller’s 240-month sentence on the
conspiracy count, Booker is not implicated. See United States v.
Izaguirre-Flores, 2005 WL 730070 at *4 n.9 (5th Cir. Mar. 31,
2005) (noting that Booker does not control analysis of the
Guidelines as they treat a prior conviction). To the extent the
Guidelines’ offense grouping provisions and drug quantity
calculation rendered Miller’s enhanced 240-month sentence on the
substantive drug offense unconstitutional, Miller’s
Blakely/Booker claim fails at the third step of the plain error
test because he has not shown that the error affected his
substantial rights. See Mares, 402 F.3d at 522.
AFFIRMED.