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United States v. Thomas, 04-30059 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 04-30059 Visitors: 11
Filed: Aug. 17, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS August 17, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-30059 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRAZIER THOMAS, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Louisiana USDC No. 03-CR-50073-ALL - Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges. PER CURIAM:* Frazier Thomas appeals the 210-month
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                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS       August 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                             No. 04-30059
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FRAZIER THOMAS,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                    USDC No. 03-CR-50073-ALL
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Frazier Thomas appeals the 210-month sentence imposed

following his guilty plea to one count of possession with intent

to distribute more than 50 grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1).   Thomas contends that the district court

erred in enhancing his sentence by two levels pursuant to United

States Sentencing Guideline § 2D1.1(b)(1), which applies when a

dangerous weapon was possessed during a drug trafficking offense.




     *
       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this opinion should not be published and is not precedent except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. 04-30059
                                  -2-

     The district court noted at sentencing that it would have

given Thomas the same 210-month sentence even if the two-level

dangerous-weapon enhancement did not apply.    The sentence imposed

is within the guideline range that would have applied without the

enhancement.     Under such circumstances, the error in applying the

enhancement, if any, is harmless.     See United States v. Rogers,

126 F.3d 655
, 661 (5th Cir. 1997).

     Thomas also has filed a letter pursuant to FED. R. APP. P.

28(j) calling our attention to the Supreme Court’s recent

decision in Blakely v. Washington, 
124 S. Ct. 2531
(2004).

However, we have held that Blakely does not apply to the United

States Sentencing Guidelines.     United States v. Pineiro, No. 03-

30437, 
2004 WL 1543170
, at *1 (5th Cir. July 12, 2004).

     AFFIRMED.

Source:  CourtListener

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