United States v. Lewis

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 31, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30273
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE JERMAINE LEWIS, also known as D-Lew,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(2:04-CR-20145-5)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Donnie Jermaine Lewis appeals his
conviction and 235-month sentence for conspiracy to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C. § 846.
For the first time on appeal, Lewis challenges the sufficiency
of his plea agreement’s stipulated factual basis, maintaining: it
failed to establish the essential elements of the crime of
conspiracy; and it was undermined by his subsequent statements.
Lewis failed to raise this challenge during his guilty-plea

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colloquy and did not attempt to withdraw his plea. Accordingly,
our review is for plain error only. See United States v. Vonn, 535
U.S. 55, 59 (2002); United States v. Angeles-Mascote, 206 F.3d 529,
530 (5th Cir. 2000). Under such review, Lewis must show a clear or
obvious error that affected his substantial rights. E.g., Angeles-
Mascote, 206 F.3d at 530. Even then, we retain discretion to
correct the error; ordinarily, we will not do so unless it
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
In his stipulation, Lewis admitted that, over the course of
approximately six years, he conspired with his co-defendant and
others to distribute a controlled substance. Lewis did not
subsequently dispute this admission. Therefore, he fails to
establish plain error. See United States v. Morgan, 117 F.3d 849,
853 (5th Cir. 1997) (“To establish a drug conspiracy in violation
of 21 U.S.C. § 846, the government must prove ... (1) an agreement
existed to violate narcotics laws, (2) the defendant knew of [it],
and (3) the defendant voluntarily participated in it.”).
As Lewis properly concedes, his challenge to our court’s
presumption of reasonableness afforded a sentence imposed within a
properly-calculated guidelines range is foreclosed. Rita v. United
States, 127 S. Ct. 2456 (2007); United States v. Alonzo, 435 F.3d
551, 554-55 (5th Cir. 2006).

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Lewis also properly concedes his challenge based on the
guidelines sentencing disparity between cocaine and crack offense
levels is foreclosed by United States v. Leatch, 482 F.3d 790 (5th
Cir. 2007). He raises it only to preserve its possible further
review.
AFFIRMED

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