United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-50652
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL LEE SHIPP,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-37-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gabriel Lee Shipp appeals the 151-month sentence imposed
following his guilty-plea conviction for possession with intent
to distribute more than 500 grams of a mixture and substance
containing a detectable amount of methamphetamine. This court
reviews the district court’s interpretation and application of
federal Sentencing Guidelines de novo. United States v. Sprick,
233 F.3d 845, 852 (5th Cir. 2000).
Shipp’s sentence was determined, in part, by application of
the guideline for methamphetamine (actual). Shipp argues that
*
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this opinion should not be published and is not precedent except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. 06-50652
-2-
the district court violated his right to due process by applying
this guideline when there exists a guideline for mixtures. He
contends that concern for the uniform application of the
guidelines and the rule of lenity weigh in favor of application
of the guideline for mixtures.
There is a rational basis for the different treatment of
methamphetamine (actual) and methamphetamine under the Sentencing
Guidelines, and the Guidelines do not violate due process in this
regard. See United States v. Molina, 469 F.3d 408, 413 (5th Cir.
2006). The methamphetamine guidelines are not subject to
arbitrary application. Id. Shipp has not shown error.
Shipp also contends that his Sixth Amendment rights were
violated by the determination of his sentence under the guideline
for methamphetamine (actual) given that he was convicted for
possessing a mixture and substance containing methamphetamine.
The Guidelines provide that, “[i]n the case of a mixture or
substance containing . . . methamphetamine, use the offense level
determined by the entire weight of the mixture or substance, or
the offense level determined by the weight of the . . .
methamphetamine (actual), whichever is greater.” § 2D1.1(c) n.B.
Under the Guidelines, then, the application of the guideline for
methamphetamine (actual) is a product of a factual finding by the
district court, which does not violate the Sixth Amendment after
United States v. Booker, 543 U.S. 220 (2005). See United States
No. 06-50652
-3-
v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert. denied, 126
S. Ct. 2884 (2006). Shipp has failed to demonstrate error.
Finally, Shipp argues that the district court erred in
considering methamphetamine amounts as relevant conduct that were
not admitted by him or charged in the information. Shipp
concedes that, under United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006), the district court was permitted to make factual
findings concerning relevant conduct without judicial admission
or a jury finding. He contends, however, that Alonzo was wrongly
decided, and he wishes to preserve the issue for Supreme Court
review.
Absent an en banc determination or Supreme Court decision to
the contrary, Alonzo is binding. See United States v. Stone, 306
F.3d 241, 243 (5th Cir. 2002). Accordingly, Shipp’s contention
that the district court erred in considering facts not admitted
by him or charged in the information is unavailing.
AFFIRMED.