United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 2, 2006
Charles R. Fulbruge III
No. 04-30504 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KREGLAN DEWAYNE GAINES,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:03-CR-132-2-B)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kreglan Dewayne Gaines pleaded guilty to one count of
conspiracy to distribute, and to possess with intent to distribute,
more than five kilograms of cocaine and one count of conspiracy to
launder monetary instruments. He was sentenced, inter alia, to 420
months in prison. Gaines contends the district court erroneously
based his sentence on facts neither admitted by him nor found by
*
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this opinion should not be published and is not precedent except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.
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the jury. Our review is only for plain error because he failed to
object on this basis in district court.
To establish plain error, Gaines must show a “clear” or
“obvious” error affected his substantial rights. E.g., United
States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543
U.S. 1029 (2004). Even then, we retain discretion to correct plain
error; we will generally do so only if the error “affects the
fairness, integrity, or public reputation of judicial proceedings”.
Id. The district court committed a clear or obvious error by
sentencing him pursuant to a mandatory application of the
Sentencing Guidelines and basing his sentence upon facts neither
admitted by him nor found by the jury. See United States v. Mares,
402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Nevertheless, Gaines does not show he likely would have received a
more lenient sentence if the district court had acted under an
advisory sentencing scheme. See id. at 521. Therefore, he has not
shown the error affected his substantial rights. See id.
AFFIRMED
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