United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
No. 06-10233 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY JOE FINNEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-112-4
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Billy Joe Finney appeals following his guilty-plea
conviction and 151-month sentence for distribution of more than
five grams of a mixture and substance containing a detectable
amount of cocaine base, and aiding and abetting. Finney argues
that his guilty plea was not knowing and voluntary because the
district court imposed a two-level firearm enhancement under
U.S.S.G. § 2D1.1(b)(1) to which he did not admit and that was not
proven to a jury beyond a reasonable doubt, thereby violating his
Sixth Amendment right to a jury trial and his Fourteenth
Amendment right to due process.
*
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this opinion should not be published and is not precedent except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. 06-10233
-2-
Finney’s waiver-of-appeal provision does not bar claims
relating to the voluntariness of the plea. To the extent that
Finney’s challenge to his guilty plea is based on a violation of
the Sixth Amendment, his argument is without merit. Finney was
sentenced in January 2006, after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). Booker solved the
Sixth Amendment problem of judicial factfinding by making the
Guidelines advisory. See United States v. Johnson, 445 F.3d 793,
797 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). After
Booker, the sentencing court is still required to calculate the
guideline range in the same manner as before Booker and to make
factual findings by a preponderance of the evidence. Id. at 798.
The plea colloquy shows that Finney was fully aware of the
consequences of pleading guilty. See United States v. Rivera,
898 F.2d 442, 447 (5th Cir. 1990). Accordingly, Finney has not
shown that his guilty plea is involuntary or that there are due
process concerns associated with his plea. See id.; United
States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990).
In view of the foregoing, the judgment of the district court
is AFFIRMED. The Government’s motion for summary affirmance is
GRANTED.