     Case: 14-30009      Document: 00512823253         Page: 1    Date Filed: 11/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30009
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 3, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RANDY WAYNE WILSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:10-CR-261-2


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Randy Wayne Wilson pled guilty to possession with intent to distribute
five grams or more of a mixture of substance containing cocaine base in
violation of the Controlled Substances Act, 21 U.S.C. § 841(a)(1). During his
sentencing hearing, Wilson admitted to possession of approximately 42 grams
of crack cocaine. In light of Wilson’s prior felony drug conviction, the district
court sentenced him to 120 months in prison pursuant to the statutory


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30009    Document: 00512823253      Page: 2   Date Filed: 11/03/2014


                                 No. 14-30009

minimum then in effect. See Anti-Drug Abuse Act, Pub. L. No. 99-570, 100
Stat. 3207 (1986). The Fair Sentencing Act, effective on August 3, 2010, raised
the threshold for violation of this Act to 28 grams. Pub. L. 111-220 § 2(a)(2),
124 Stat 2372. At the time of Wilson’s initial sentencing, this Circuit did not
apply the FSA to conduct committed before the new law became effective. See
United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
      In Dorsey v. United States, the Supreme Court held categorically that
the FSA applied to all sentences imposed after the law’s passage, regardless of
when the charged conduct occurred. 132 S. Ct. 2321, 2336 (2012). Wilson
accordingly filed a motion for resentencing pursuant to 28 U.S.C. § 2255. The
Government agreed that he was entitled to a new hearing but argued that he
should receive the same sentence, a request the district court eventually
granted. Wilson now appeals the imposition of that sentence, arguing that the
Government was required to indict and prove beyond a reasonable doubt the
facts determining his sentence. Apprendi v. New Jersey, 530 U.S. 466); see also
Alleyne v. United States, 133 S. Ct. 2151 (2013).
      Wilson, however, failed to raise any objection to his sentence on this basis
in the trial court. His pre-sentencing memorandum makes no argument on
this point other than stating that, “Based on a change in the law, [defendant]
is no longer subject to a statutory minimum sentence.”         At his sentencing
hearing, Wilson’s attorney argued only that Wilson should receive the benefit
of Dorsey or the increase in the drug calculation tables. Immediately after he
imposed the sentence, the district judge asked defense counsel if he had
anything further. Counsel stated “Everything was set forth in my sentencing
memorandum.”
      Because Wilson did not preserve his objection, we review it for plain error
under Rule 52(b). United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).



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                                  No. 14-30009

We will exercise our discretion to correct an unpreserved plain error only “if
the error ‘seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’”      Puckett v. United States, 556 U.S. 129, 135,
129 S. Ct. 1423, 1429 (2009) (quoting United States v. Olano, 507 U.S. 725, 736,
113 S. Ct. 1770, 1779 (1993)) (alteration in original). If the error complained
of presents a “tiny risk” that the sentence would have been different, reversal
“is most unlikely.” United States v. Marcus, 560 U.S. 258, 267, 130 S. Ct. 2159,
2167 (2010) (internal quotation marks omitted).
      Here, the defendant admitted possession of a quantity of crack sufficient
to sustain the sentence. Forty-two grams of crack, taken together with an
enhancement for his prior conviction, well exceeds the revised standard for a
10-year minimum sentence. Thus, any error could not have affected Wilson’s
substantial rights. Further, in the words of a unanimous Court, “The real
threat then to the “fairness, integrity, and public reputation of judicial
proceedings” would be if respondents, despite the overwhelming and
uncontroverted evidence that they were [guilty], were to receive a sentence
prescribed for those committing less substantial drug offenses because of an
error that was never objected to at trial.” United States v. Cotton, 535 U.S.
625, 634, 122 S. Ct. 1781, 1787 (2002); see also Johnson v. United States,
520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (conducting a similar ‘causal’
plain-error analysis).
      In the absence of plain error that mandates reversal, we AFFIRM the
sentence.
                                                                   AFFIRMED.




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