IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 30, 2008
No. 05-51570
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
STEVE MCGARY CARROLL
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-275-4
Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Steve McGary Carroll appeals his guilty plea conviction and sentence for
conspiracy to distribute more than five kilograms of cocaine in violation of 21
U.S.C. §§ 841(a), (b)(1)(A) and 846. Carroll argues for the first time on appeal
that the district court violated FED. R. CRIM. P. 11 because the court did not
advise him of the 10-year statutory minimum sentence under § 841(b)(1)(A). He
also argues, as he did in the district court, that the district court violated United
*
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should not be published and is not precedent except under the limited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. 05-51570
States v. Booker, 543 U.S. 220 (2005), when it sentenced him based upon an
amount of drugs greater than that to which he admitted.
Where, as here, a defendant has not objected to a Rule 11 error in the
district court, review is for plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002). The transcript of the rearrignment indicates that Carroll was aware
of the mandatory minimum sentence under § 841(b)(1)(A). In addition, the
presentence report (PSR) correctly stated that the applicable mandatory
minimum statutory term of imprisonment was ten years. Accordingly, Carroll
cannot show a reasonable probability that, but for the district court’s failure to
advise him of the mandatory minimum penalty, he would not have pleaded
guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); see also
Vonn, 535 U.S. at 59.
In Booker, the Supreme Court reaffirmed its holding in Apprendi v. New
Jersey, 530 U.S. 466 (2000), that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” 543 U.S. at 244. The
Court also excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,
rendering the Federal Sentencing Guidelines effectively advisory. Id. at 258-59.
By rendering the Sentencing Guidelines advisory only, Booker eliminated Sixth
Amendment concerns that would otherwise have prohibited sentencing judges
from finding all facts relevant to sentencing. United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005). Thus, even after Booker, “[t]he sentencing judge is
entitled to find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range . . . .” Id.; United States v.
Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). The
facts relevant to sentencing include relevant conduct under U.S.S.G. § 1B1.3.
United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006). Moreover, “[a] district
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No. 05-51570
court may adopt the facts contained in a [PSR] without further inquiry if those
facts have an adequate evidentiary basis with sufficient indicia of reliability and
the defendant does not present rebuttal evidence or otherwise demonstrate that
the information in the PSR is unreliable.” United States v. Valdez, 453 F.3d 252,
262 (5th Cir. 2006).
The PSR’s summary of Carroll’s offense conduct was based upon reports
from the Texas Department of Public Safety, reports from the Federal Bureau
of Investigation, statements from confidential informants, statements from
Carroll’s co-defendants, and interviews with the case agent. Carroll did not
object to the reliability of the PSR, did not present any rebuttal evidence, and
has not demonstrated that any information contained in his PSR is unreliable.
Carroll’s argument that his sentence was unreasonable because his guidelines
range was not properly calculated in violation of the Sixth Amendment is
without merit. See Alonzo, 435 F.3d at 553-54. Carroll’s conviction and sentence
are AFFIRMED.
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