United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-10283
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK WIMBISH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-259-1-A
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Patrick Wimbish appeals his sentence following his guilty
plea conviction for 1) aiding and abetting the possession with
the intent to distribute methylenedioxymethamphetamine and 2)
aiding and abetting the unlawful possession of a firearm in
furtherance of a drug-trafficking offense. Citing Blakely v.
Washington, 124 S. Ct. 2531 (2004), and by extension, United
States v. Booker, 125 S. Ct. 738 (2005), Wimbish argues that his
sentence is unconstitutional because it was based upon findings
*
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this opinion should not be published and is not precedent except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. 04-10283
-2-
that were neither admitted by Wimbish nor found by a jury beyond
a reasonable doubt. As Wimbish 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.), cert. denied, 126 S. Ct.
43 (2005).
Wimbish meets the first two prongs of the plain error test
because his sentence was enhanced based on facts found by the
district court, which constitutes obvious error after Booker.
See id. at 521. Nevertheless, Wimbish’s Booker claim fails at
the third step of the plain error test because he has not shown
that the error affected his substantial rights. There is no
indication in the record that the district court would have
imposed a lower sentence under an advisory as opposed to a
mandatory sentencing guidelines regime. See id. at 522.
Wimbish next asserts, also for the first time on appeal,
that the Government’s refusal to file a U.S.S.G. § 5K1.1 motion
for downward departure based on Wimbish’s substantial assistance
was “totally irrational and amounted to a denial of due process.”
Because Wimbish neither shows that the Government bargained away
its discretion to file a U.S.S.G. § 5K1.1 motion nor argues that
the Government acted with unconstitutional motive, his downward
departure claim is not reviewable. See Wade v. United States,
504 U.S. 181, 185-87 (1992); United States v. Urbani, 967 F.2d
106, 110-11 (5th Cir. 1992).
AFFIRMED.