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. 04-51449
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL KELLY MOSES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-136-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Daniel Kelly Moses appeals the sentence imposed following
his guilty plea conviction for attempting to manufacture
methamphetamine. Moses argues that the district court erred
under United States v. Booker, 125 S. Ct. 738 (2005), by applying
the sentencing guidelines as mandatory and that the district
court erred by assigning him four criminal history points for two
prior convictions. Moses asserts that he should have received a
*
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this opinion should not be published and is not precedent except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. 04-51449
-2-
total of two criminal history points for these two convictions
because they are related cases.
We review for plain error. See United States v. Valenzuela-
Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition for cert.
filed (July 25, 2005) (No. 05-5556). Moses has not established
plain error with respect to the district court’s mandatory
application of the sentencing guidelines because he has not met
his burden to show that the district court would have imposed a
significantly different sentence under an advisory guidelines
scheme. See United States v. Holmes, 406 F.3d 337, 365-66 (5th
Cir. 2005), petition for cert. filed (July 1, 2005) (No. 05-38).
Moses also has failed to show that the district court
plainly erred in calculating his criminal history score. On the
same day that Moses was sentenced for a 2002 possession of
cocaine offense, the terms of his probation for a 2001 possession
of cocaine offense were amended. Despite Moses’s argument to the
contrary, this does not establish that these two cases were
related. See United States v. Compian-Torres, 320 F.3d 514, 516
(5th Cir. 2003); United States v. Husky, 137 F.3d 283, 288 (5th
Cir. 1998).
AFFIRMED.