IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2008
No. 08-50054
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAVIS DONNELL KENNEDY
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-126-2
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Ravis Donnell Kennedy appeals from the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute cocaine
and crack cocaine and possession with intent to distribute crack cocaine.
Kennedy argues on appeal that the district court erred by converting 80.28
grams of powder cocaine found in his codefendant’s residence into an equivalent
amount of crack cocaine when determining his sentence.
*
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should not be published and is not precedent except under the limited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. 08-50054
This court reviews the sentencing court’s findings of fact for clear error
and its application of the Sentencing Guidelines de novo. United States v.
Burns, 526 F.3d 852, 859 (5th Cir. 2008). Based upon the evidence regarding
Kennedy and his codefendant’s crack cocaine dealings, it was foreseeable to
Kennedy that the powder cocaine located in the codefendant’s residence would
be converted into crack cocaine. See United States v. Booker, 334 F.3d 406, 414
(5th Cir. 2003). The district court therefore did not clearly err by converting the
80.28 grams of powder cocaine into an equivalent amount of crack cocaine for
sentencing purposes. See Burns, 526 F.3d at 859. Moreover, to the extent that
Kennedy relies upon Kimbrough v. United States, 128 S. Ct. 558 (2007), his
argument lacks merit because the crack/powder disparity discussed in
Kimbrough does not prohibit a district court from converting powder cocaine into
crack cocaine for sentencing purposes when it is otherwise appropriate for it to
do so.
The district court’s judgment is AFFIRMED.
2