United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-41129
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREL LYNN COWAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-865-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Darrel Lynn Cowan pleaded guilty to one count of importing
marijuana into the United States in violation of 21 U.S.C.
§§ 952 and 960(a), (b). The district court sentenced him to 46
months in prison, and Cowan now appeals.
Cowan concedes that his argument that the statutes under
which he was convicted are unconstitutional because they treat
drug quantity as sentencing factors rather than elements of the
offense is foreclosed by United States v. Slaughter, 238 F.3d
*
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this opinion should not be published and is not precedent except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. 04-41129
-2-
580, 582 (5th Cir. 2000). He raises it only to preserve it for
further review.
Cowan also contends that his sentence is unconstitutional in
light of the rule announced in United States v. Booker, 125 S.
Ct. 738 (2005), because the district court imposed the sentence
pursuant to the then-mandatory Federal Sentencing Guidelines,
which Booker rendered advisory. We review for plain error. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Imposition of a sentence under the former mandatory guideline
regime constitutes error that is plain, i.e., obvious. See
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.
2005).
We reject Cowan’s argument that such error is structural or
presumptively prejudicial with respect to whether the error
affects substantial rights, and we employ the same analysis set
forth in Mares. See id. at 601. As there is no indication in
the record that the district court would have given Cowan a lower
sentence under an advisory system, Cowan cannot demonstrate that
any error in the mandatory application of the Guidelines affected
his substantial rights. See id.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.