United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-11101
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO DEMETRIUS WHEAT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-161-ALL-A
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
In 2000, Orlando Demetrius Wheat was convicted pursuant to a
guilty plea of being a prohibited person in possession of a
firearm. He was sentenced to 27 months of imprisonment and three
years of supervised release. Wheat appeals the sentence imposed
following the revocation of his supervised release.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely
v. Washington, 542 U.S. 296 (2004), and United States v. Booker,
543 U.S. 220 (2005), Wheat complains that the 27-month term of
*
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this opinion should not be published and is not precedent except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. 04-11101
-2-
imprisonment imposed for his conviction and the 14-month term of
imprisonment imposed for his violation of supervised release
exceeded in the aggregate the 33-month total term of imprisonment
allowed under the United States Sentencing Guidelines for his
initial conviction based on the facts alleged in his indictment
and admitted by him. Wheat argues as a result that the district
court was authorized to impose no more than a six-month term of
imprisonment upon revocation of his supervised release unless the
facts pertaining to his release violations were alleged in an
indictment and found by a jury beyond a reasonable doubt. Wheat
contends that the alleged Booker violation in his case cannot be
cured by application of Booker’s remedial advisory guidelines
system because his initial sentence is final and because it would
violate due process and ex post facto laws. Wheat’s arguments
lack merit. See United States v. Alfaro-Hernandez, 453 F.3d 280,
281-82 (5th Cir. 2006); United States v. Hinson, 429 F.3d 114,
116-19 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006).
The 14-month term of imprisonment imposed upon revocation of
Wheat’s supervised release did not exceed the statutory maximum
term of imprisonment that the district court could have imposed.
See 18 U.S.C. § 3583(e)(3). Accordingly, Wheat’s sentence upon
revocation was neither “unreasonable” nor “plainly unreasonable.”
See Hinson, 429 F.3d at 120.
AFFIRMED.