United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-41114
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERIC CAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-667-2
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Roderic Cain appeals his 151-month sentence on a conviction
for possession with intent to distribute in excess of 1,000
kilograms of marijuana. 21 U.S.C. § 841(a)(1), (b)(1)(A). For
the first time on appeal, Cain argues the district court’s
determination of Cain’s base offense level based upon an
estimated drug quantity of 4,000 kilograms of marijuana was
unconstitutional under United States v. Booker, 125 S. Ct. 738,
764 (2004).
*
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this opinion should not be published and is not precedent except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. 04-41114
-2-
Because Cain raises this argument for the first time on
appeal, it is reviewed for plain error. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed, No. 04-9517 (U.S. Mar. 31, 2005). Cain fails to
demonstrate that the district court would have reached a
significantly different result under an advisory guidelines
scheme. See Mares, 402 F.3d at 521-22. Accordingly, Cain cannot
establish plain error with respect to the district court’s base
offense level. See id. The sentence of the district court is
AFFIRMED.