United States v. Brown

* 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this opinion should not be published and is not precedent except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
May 19, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40501
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONTAE ROMAIN BROWN,
also known as Dontae Romain Jimerson,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-106-10
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Dontae Romain Brown appeals his sentence following his
guilty-plea conviction for conspiracy to possess with intent to
distribute more than 50 grams of cocaine base. Brown argues that
his sentence was unreasonable in light of United States v.
Booker, 543 U.S. 220 (2005), due to the disparity in the
punishment imposed for offenses involving powder cocaine versus
those involving cocaine base.

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No. 05-40501
-2-
We note that Brown’s plea agreement contained a waiver of
the right to appeal his sentence. The Government does not seek
enforcement of the waiver, however, and we therefore do not
consider it. See United States v. Lang, 440 F.3d 212, 213 (5th
Cir. 2006).
The district court imposed a sentence within the advisory
guideline range, and Brown does not challenge the district
court’s calculation of that range. Brown’s sentence is therefore
presumptively reasonable. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006); United States v. Mares, 402 F.3d 511,
518-19 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). We have
previously rejected arguments challenging the disparity in the
penalties for offenses involving powder and crack cocaine, which
are mandated by Congress. See, e.g., United States v. Wilson, 77
F.3d 105, 112 (5th Cir. 1996). Because the advisory guidelines
range should be determined in the same manner as before Booker,
Mares, 402 F.3d at 519, Brown has not overcome the presumption
that his sentence is reasonable, see Alonzo, 435 F.3d at 554;
Mares, 402 F.3d at 519.
AFFIRMED.

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