                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                          June 21, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 03-60824


                         UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

                                ELI “TOM” ORR,

                                                      Defendant-Appellant.


            Appeal from the United States District Court
              for the Northern District of Mississippi
                            (1:03-CR-35)


Before WIENER, BARKSDALE, AND DENNIS, Circuit Judges.

PER CURIAM:*

      Eli “Tom” Orr was found guilty by a jury of two counts of

distribution of in excess of 50 grams of cocaine base, in violation

of   21   U.S.C.   §   841(a)   and    (b)(1)(A),   and    of   conspiracy     to

distribute in excess of 500 grams of cocaine hydrochloride, in

violation of 21 U.S.C. §§ 841(a), (b)(1)(B) and 846.              Pursuant to

21 U.S.C. §§ 841 and 851, and because of prior drug convictions,

Orr was sentenced to life imprisonment.              Orr appeals both his

conviction and sentence, raising 14 issues.               The primary claims


      *
       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this opinion should not be published and is not precedent except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.

                                        1
are:    (1) the district court erred in denying Orr’s motion to

suppress; (2) the Government engaged in misconduct through both

failure to produce grand jury testimony and closing argument; (3)

the district court erred by instructing the jury it had to find the

conspiracy involved cocaine base, rather than cocaine as charged in

the indictment; (4) the district court erred in enhancing Orr’s

sentence based on prior convictions; and (5) Orr’s sentence is

unconstitutional under United States v. Booker, 125 S. Ct. 738

(2005) (federal sentencing guidelines only advisory).    AFFIRMED.

                                 I.

       On 8 March 2003, at approximately 12:30 a.m., Orr was a

passenger in his automobile parked in a handicapped parking space

outside a convenience store in Memphis, Tennessee.   The automobile

had no handicapped license plate, sticker, or placard.      Because

being so parked is a traffic violation in Memphis, Officer Brown

approached Glory Howard, who was in the driver’s seat, and asked

for her driver’s license, which she could not produce.     Instead,

she presented a chain store identification card which contained

the driver’s license number.

       After a computer check revealed Howard’s Mississippi driver’s

license was suspended, Officer Brown asked Howard to exit the

automobile. As part of a detention procedure, Officer Brown patted

Howard down; when doing so, he felt brick-like objects in the

jacket she was wearing.    Howard denied knowledge of the jacket’s


                                  2
contents, claiming the jacket was Orr’s.   After Howard removed the

jacket, Officer Brown placed it on the trunk of the vehicle.

       Orr exited the vehicle and approached Officer Brown, who

instructed him to put his hands on the trunk.   While Officer Brown

was attempting to pat Orr down, he swung at the Officer, grazing

his head, grabbed the jacket from the trunk of the automobile and

ran.    After a chase, Orr was captured and the jacket retrieved.

Four bricks of powdered cocaine were removed from its lining, and

$1,820 was seized from Orr.

       Orr was charged with two counts of distribution of in excess

of 50 grams of cocaine base; he and Howard were charged with one

count of conspiracy to distribute in excess of 500 grams of cocaine

hydrochloride.    On the first day of trial, Howard pled guilty.

       At Orr’s trial, Howard testified about: traveling with Orr to

Chicago to pick up drugs, intending to transport them to Houston,

Mississippi; placing the cocaine in Orr’s jacket; and the events in

the Memphis parking lot.   In addition, Littleton Howard and Willie

Ewell testified about their cocaine dealings with Orr.     Both had

pled guilty to drug violations and testified in the hope of lower

sentences.   Ewell testified to Orr’s “fronting” him crack cocaine,

for which Orr was later paid.    Several such transactions had been

recorded with both audio and video recording devices.     The tapes

and corresponding transcripts for one of the transactions were

admitted in evidence.    Officers testified to surveillance of the

other recorded transactions.

                                  3
     A    jury   found    Orr   guilty    on   all   three   counts.   He   was

sentenced, inter alia, to imprisonment for life on each count, to

run concurrently.

                                         II.

     Orr’s 14 issues are addressed below.             Each is without merit.

                                         A.

     Orr challenges the denial of his motion to suppress evidence

obtained from the stop and detention of Howard.                An evidentiary

hearing was held in June 2003, shortly before trial.                   For the

motion, the district court’s factual findings are reviewed only for

clear error; its legal conclusions, de novo.             E.g., United States

v. Burbridge, 252 F.3d 775, 777 (5th Cir. 2001).               The evidence is

viewed in the light most favorable to the party prevailing in

district court.     Id.

     Orr contends: there was no moving violation, only a parking

violation, which did not require production of a driver’s license;

Officer Brown had no probable cause to arrest or detain Howard for

operating a vehicle with a suspended license, but instead, should

have cited the vehicle and ended the detention; because there was

no probable cause to arrest, searching Howard violated the Fourth

Amendment; and, therefore, all evidence obtained during and after

the search was fruit of the poisonous tree.

         Officer Brown was not required to simply issue a parking

citation and end Howard’s detention after discovering she had a


                                          4
suspended license.    Upon the Officer’s making that finding, he had

the authority to arrest her for driving with a suspended license,

because, inter alia, he had witnessed her attempting to back out of

the handicapped parking space.    The district court did not err in

concluding there was probable cause to arrest and search Howard.

See United States v. Robinson, 414 U.S. 218, 225, 236 (1973).

Therefore, Orr’s suppression contention is without merit.

                                 B.

     Consistent with his objection at trial, Orr asserts that,

because the Government failed to prove the chain of custody, the

district court should not have admitted into evidence drugs either

found in the jacket Howard was wearing or received from Ewell.   The

admission of evidence is reviewed for abuse of discretion.   United

States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997), cert. denied,

523 U.S. 1096 (1998).    “[A] ‘break in the chain of custody simply

goes to the weight of the evidence, not its admissibility’”.     Id.

(quoting United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993),

cert. denied, 510 U.S. 1080 (1994)). In short, the Government need

only make a prima facie showing of authenticity.      See Sparks, 2

F.3d at 582.

                                 1.

     Orr maintains:     the only evidence of the two surveilled

transactions involving Ewell is the account given by Ewell, a paid

informant; the chain of custody was broken; and the tape recording

                                  5
of these transactions is unreliable because Ewell gave the tape to

the Agents.

      Ewell testified that Orr delivered the cocaine base to him.

Ewell gave the substance from the first transaction to Officer

Howell, after initialing its packaging; that Officer gave the

substance to Special Agent Douglas.         Ewell gave the substance from

the second transaction to Special Agent Douglas.

      Special Agent Douglas forwarded the substances from both

transactions to the DEA lab in Dallas, Texas, after the substances

field   tested   positive   for   cocaine.       A   DEA   forensic   chemist

testified the evidence was sealed when she received it.                   The

substances contained cocaine base.          The first weighed 97.2 grams;

the second, 89 grams.

      The Government made a prima facie showing of authenticity, and

the   district   court   did   not    err   in   admitting   the   evidence.

Obviously, Orr’s objection to Ewell’s credibility was a question

for the jury to weigh.      See id.

                                      2.

      For the conspiracy count, concerning drugs seized from the

jacket Howard was wearing, Orr asserts:              Officer Brown neither

maintained custody of the substance nor field tested it to confirm

it was cocaine; and, after Officer Cooper took possession of the

substance from Officer Brown, he failed to initial the receipt for

it on providing it to the property room.         Thus, Orr asserts Officer


                                      6
Cooper did not have custody of the contraband.                Needless to say,

the     mere   failure   to   initial       evidence   does   not   render   it

inadmissible.     Dixon, 132 F.3d at 197 n.6.

      Orr contends that, despite Howard’s identification at trial of

the contraband photographed on the trunk of his automobile as the

cocaine she transported from Chicago, Officer Cooper could not

confirm these packages were the same as those in photographs from

the crime lab.      Orr notes that the packages did not all look the

same and were not packaged the same way and contends, without

citation or support, that subsequent to this case, the property

room officer was convicted of theft of drugs from the property

room.    He also cites to a property tag, which has not been included

in the record on appeal.

      Officer Cooper testified he took custody of the jacket and

cocaine at the scene, took the evidence to the property room, and

witnessed a member of the organized crime unit initial the evidence

as it was sealed in the property room.           A Memphis Police Detective

testified he retrieved the cocaine from the property room and

delivered it to Special Agent Douglas.                 Special Agent Douglas

testified he received the cocaine from the Detective and prepared

a receipt, then delivered it to an Agent, who delivered it to the

Tupelo Police Department crime laboratory.               An employee of that

laboratory testified she tested the substance from the sealed

package and determined it contained cocaine.             The total weight of



                                        7
the bricks, without packaging, was 2,000.8 grams.       The Government

made a prima facie showing of authenticity.          Accordingly, the

district court did not abuse its discretion in admitting the

evidence over Orr’s objection.    See id. at 197 & n.6.

                                  C.

     Citing 18 U.S.C. § 201(c)(3) (providing penalties for bribery

of, inter alia, witnesses), Orr maintains Ewell’s testimony was

illegal because:   it resulted from a plea offer; and Ewell was paid

$1,000 by the Government to complete “the transactions”.       It does

not appear this issue was raised in district court.      In any event,

a favorable plea agreement in exchange for truthful testimony does

not violate § 201.   See United States v. Haese, 162 F.3d 359, 368

(5th Cir. 1998), cert. denied, 526 U.S. 1138 (1999).     And, § 201 is

not violated “when prosecutors compensate informants for their

cooperation”.    United States v. Barnett, 197 F.3d 138, 145 (5th

Cir. 1999), cert. denied, 529 U.S. 1111 (2000).

                                  D.

     According to Orr, the district court lacked jurisdiction

because the Government did not establish a nexus between the

offense   and   interstate   commerce.      Congress’   regulation   of

controlled substance offenses under 21 U.S.C. §§ 841 and 846 is

permissible under the Commerce Clause and showing an interstate

commerce nexus is not required.        See United States v. Lopez, 459

F.2d 949, 953 (5th Cir.), cert. denied, 409 U.S. 878 (1972).


                                  8
                                E.

     Orr contends the Government engaged in misconduct because it:

withheld transcripts of grand-jury testimony by Special Agent

Douglas, Officer Blaylock, and “others known and unknown”; and,

during closing argument, stated neither the drugs nor Orr “will

[]ever be on the street again”, and, if the jury failed to find Orr

guilty, it “deserved what [it] got”.

                                1.

     Under the Jencks Act, the Government must produce, upon a

defendant’s motion and after a witness has testified on direct

examination, any statement in its possession “which relates to the

subject matter as to which the witness has testified”.    18 U.S.C.

§ 3500(b).   Prior to trial, Orr requested production of the grand

jury testimony of “any person whom the [Government] intends to call

at trial”.    The Government did not produce such testimony by

Special Agent Douglas or Officer Blaylock.   (Orr does not identify

any others whose testimony may not have been produced.   His request

for a transcript of the grand jury proceedings for use with this

appeal was denied by the district court because Orr failed to

articulate a particular need for it.)

     The Government maintains that, even though it did not produce

this material, there was no Jencks Act violation because Orr did

not request the material at trial at the conclusion of the direct

examination of Special Agent Douglas or Officer Blaylock.       The

Government also asserts that Orr waived this issue by failing to

                                 9
either pursue discovery during trial or alert the district court to

the issue.

     In any event, Orr fails to make the requisite showing.    He has

neither contended, nor shown, that the failure to produce the

transcripts “had a substantial influence on the judgment” or that

any witness’ testimony at trial differed substantially from that

before the grand jury.    United States v. Montgomery, 210 F.3d 446,

451-52 (5th Cir. 2000).

                                 2.

     The claimed misconduct during closing argument is reviewed to

determine:   “1) whether the prosecutor’s comments were improper,

and 2) if [they] were ..., whether they prejudiced the defendant’s

substantive rights”.     United States v. Duffaut, 314 F.3d 203, 210

(5th Cir. 2002) (citation omitted).       In deciding whether such

rights were affected, we consider:     the degree of prejudice from

the statement; whether a cautionary instruction was rendered and

what effect it had; and the strength of the Government’s case.   Id.

at 210-11.

                                 a.

     The Government contends it has been unable to locate in the

record where the jury was told that neither the drugs nor Orr would

be on the street again.    In his opening brief, Orr does not provide

the requisite record citations for the allegedly improper remarks;

in his reply brief, he does not respond to this noted omission.


                                  10
Nor do we find the alleged remarks.           Given Orr’s failure to show

the comment was made, this issue is without merit.

                                   b.

     The Government commented twice on society reaping what it

sows, to which Orr objected. Although the district court overruled

the first objection, it sustained the second to the statement that,

“if you can sit there and listen to that and then vote not guilty,

then, indeed, the people of north Mississippi are going to get just

the kind of criminals we deserve”.       The district court admonished

the jury to disregard the statement.

     The comments were improper.         Given, however, the curative

instruction, the substantial evidence of Orr’s guilt, and his

failure   to   contend,   or   show,    his     substantive   rights   were

prejudiced, there is no reversible error.          See id.

                                   F.

     According to Orr, the district court failed to instruct the

jury on the quantity of drugs it must find for conviction on counts

one and two (distribution of cocaine base).              For each count,

however, the jury was instructed that the Government had to prove

beyond a reasonable doubt that the substance was cocaine base and

“weighed in excess of 50 grams” (as charged in the indictment).

                                   G.

      In count three, Orr was charged with conspiracy with Howard

to distribute, and possess with intent to distribute, cocaine. Orr



                                   11
claims for the first time on appeal that the district court erred

in its jury instruction for that count.             Therefore, review is only

for plain error.         FED. R. CRIM. P. 52(b); see United States v.

Partida, 385 F.3d 546 (5th Cir. 2004), cert. denied, 125 S. Ct.

1616 (2005). We may correct such forfeited error only if Orr shows

a plain (clear or obvious) error that affected his substantial

rights.    FED. R. CRIM. P. 52(b); e.g., United States v. Calverley,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513

U.S. 1196 (1995) (citing United States v. Olano, 507 U.S. 725

(1993)).     Even then, whether to correct the forfeited error is

within our discretion; generally, we will not do so unless “the

error    ‘seriously     affect[s]     the    fairness,   integrity     or   public

reputation of judicial proceedings’”.                Olano, 507 U.S. at 736

(citation omitted).

     The district court instructed that the jury had to find two or

more persons agreed to distribute, or possess with intent to

distribute, more than 500 grams of cocaine base, rather than

cocaine, as charged in the indictment. Orr claims reversible plain

error, asserting the evidence was insufficient to establish the

offense involved more than 500 grams of cocaine base. Therefore, he

argues    there   was   no    conviction,     or,   alternatively,     that   any

conviction    was    for     the   lowest    quantity    of   the   default   drug

(marihuana), which would result in a one to seven month sentence.

Orr contends:       there is a reasonable likelihood the jury followed


                                        12
the    court’s    instructions;       and    this     was   not    an    isolated    and

inadvertent error, as the Government contends.

       The Government responds:         it was an inadvertent misstatement;

throughout trial, all other references to the conspiracy count were

to cocaine; it was clear to everyone that this was the charge; the

evidence       supporting     Orr’s     conviction          on    this      count    was

overwhelming; the jury instructions as a whole correctly stated the

law; and Orr’s substantial rights were not affected, given the

overwhelming evidence against him.

       Pursuant to the Fifth Amendment, Orr had the right to be tried

only on the charges contained in the indictment. Partida, 385 F.3d

at 557.        “[A] constructive amendment of the indictment is a

reversible error per se if there has been a modification at trial

of the elements of the crime charged”.                United States v. Nunez, 180

F.3d 227, 230-31 (5th Cir. 1999) (internal quotation omitted).                         An

indictment is constructively amended when “the jury is permitted to

convict a defendant based on an alternative basis permitted by the

statute, but not charged in the indictment”.                 Partida, 385 F.3d at

557.     Not     all   variances   between       an    indictment       and   the    jury

instructions      are    constructive        amendments,         however;     some    are

harmless error.         Nunez, 180 F.3d at 231; see also FED. R. CRIM. P.

52(a).    In reviewing jury instructions, we “rarely will reverse a

conviction based on a district court’s insignificant slip of the

tongue”.       United States v. Phipps, 319 F.3d 177, 190 (5th Cir.


                                            13
2003) (finding no reversible plain error where one reference was

made to proof by a preponderance of the evidence).            “[T]he proper

inquiry is not whether the instruction ‘could have’ been applied in

an unconstitutional manner, but whether there is a reasonable

likelihood that the jury did so apply it”.       Id. (quoting Victor v.

Nebraska, 511 U.S. 1, 6 (1994)) (emphasis in original).

     Because the Government sought enhanced penalties against Orr,

based on the amount of drugs involved in the offense, the quantity

was required to be charged in the indictment and proved beyond a

reasonable doubt.      See United States v. Doggett, 230 F.3d 160, 164-

65 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).            Orr was

charged, in part, with conspiracy to distribute, and to possess

with intent to distribute, in excess of 500 grams of cocaine.            The

district court read this portion of the indictment to the jury,

but, as noted, also charged the jury that it had to find beyond a

reasonable doubt “that two or more persons made an agreement to

commit the crime of distributing or possessing with intent to

distribute cocaine base, a controlled substance” and “that the

substance weighed in excess of 500 grams”.

     There   is   no   reasonable   likelihood   the   jury    applied   the

incorrect instruction in an unconstitutional manner.            See Phipps,

319 F.3d at 190.        The error did not affect Orr’s substantial

rights.   See Olano, 507 U.S. at 736.       Accordingly, there was no

reversible plain error.


                                    14
                                         H.

     Orr contends use of a general verdict form deprived him of the

right to a unanimous verdict given the claimed ambiguity regarding

both whether he was convicted of an offense involving cocaine or

cocaine base and the jury charge for the conspiracy count.                  Orr did

not object at trial, however, to use of the form.                    Our review,

therefore, is only for plain error.           Partida, 385 F.3d at 554.

     General verdict forms are preferred by our court. See U.S. v.

McCracken, 488 F.2d 406, 418 (5th Cir. 1974); U.S. v. James, 432

F.2d 303, 307 (5th Cir. 1970), cert. denied, 403 U.S. 906 (1971).

Use of the form was not error, much less reversible plain error.

                                         I.

     Orr asserts he entered into an agreement in 1992 with the

State and United States to cooperate in solving a homicide in

exchange for then-pending charges being dismissed.              He maintains:

the agreement prevented the Government from using for enhancement

purposes   the     offenses     it   agreed   not   to    prosecute;       and   the

Government is barred by res judicata from violating the agreement.

     The only evidence Orr submitted of such an agreement is an un-

executed counteroffer from the United States Attorney’s office; a

state court motion to dismiss an indictment based on this alleged

agreement;   and    a   state    court   transcript      referring    to    a    plea

agreement with different terms.           Because the alleged agreement is

not signed by the parties and was conditioned on certain events


                                         15
which Orr has not shown occurred, he has not shown there is any

agreement.     (Following oral argument here, Orr filed a motion to

place under seal this unexecuted agreement, which was attached as

an exhibit to his brief.           Because that document was attached to

Orr’s original brief, and was, therefore, already in the public

record, his motion is DENIED.)

                                          J.

     Orr next claims the district court erred in sentencing him as

a career offender pursuant to U.S.S.G. § 4B1.1(a), which provides:

          [a] defendant is a career offender if (1) the
          defendant was at least eighteen years old at
          the time the defendant committed the instant
          offense of conviction; (2) the instant offense
          of conviction is a felony that is either a
          crime of violence or a controlled substance
          offense; and (3) the defendant has at least
          two prior felony convictions of either a crime
          of violence or a controlled substance offense.

Orr, however, was sentenced, based on prior convictions, under the

enhancement provisions provided by 21 U.S.C. § 841 and the notice

provisions of 21 U.S.C. § 851.                 Section 841, in relevant part,

requires a     mandatory    term     of   life    imprisonment         upon    a   third

conviction following two prior drug felony convictions.                             The

Government’s    notice     of   intent     to    seek    an   enhanced        sentence,

required by § 851, and an addendum to that notice cited five prior

controlled substance offenses:            (1) a 15 May 1980 conviction for

unlawful possession of a controlled substance; (2) a 13 April 1985

conviction   for   delivery     of    marihuana;        (3)   a   12   October     1993



                                          16
conviction for the sale of cocaine; (4) a 15 May 1995 conviction

for possession   with   intent   to    sell   a   schedule   II   controlled

substance; and (5) a 15 May 1995 conviction for possession of a

schedule II controlled substance.

     Orr claims his 12 October 1993 conviction for sale of cocaine

and his 15 May 1995 convictions for distribution of a controlled

substance and for possession of a controlled substance should not

have been counted because of the above-described claimed agreement

with the Government that the charges on which these convictions

were based would be dismissed.        Although noting that the district

court found these offenses were beyond the five-year period during

which prior convictions could be challenged, see 21 U.S.C. §

851(e), Orr contends there is no statute of limitations regarding

his claimed agreement with the Government.         In the alternative, he

maintains these three convictions were consolidated for sentencing

and, therefore, should count as only one conviction.              The record

does not reflect these convictions were consolidated.             Rather, Orr

was sentenced for the two 15 May 1995 convictions on the same day.

This does not require that they be treated as one conviction.            See

United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997), cert.

denied, 523 U.S. 1065 (1998).          Orr provides no basis for his

contention the 12 October 1993 conviction should be consolidated

with the two 15 May 1995 convictions.




                                  17
      Orr asserts he received a deferred or suspended sentence for

his   15   May    1985   conviction    for    possession   of   a    controlled

substance.       (This appears to be a reference to his 15 May 1980

conviction.)      As a result, he contends that this conviction should

not have      been   counted.     A   prior   felony   conviction,    however,

includes a state offense which is punishable by over a year of

imprisonment, regardless of the sentence actually imposed.                   See

U.S.S.G. § 4B1.2, cmt. n.1.           Therefore, Orr’s being sentenced to

two   years    “conditional     discharge”    for   this   offense    does   not

preclude the conviction’s being a prior felony offense.

      Orr does not contest including in the sentence calculation his

13 April 1985 conviction for delivery of marihuana.             Accordingly,

based on his various challenges to his prior convictions being

counted, Orr asserts only that conviction can be counted.                     In

addition, he contends: he was not given the opportunity to contest

the prior convictions; and he should have been sentenced at level

32 and with a criminal history category of II.               For the reasons

stated earlier, Orr’s contention that the prior convictions should

not have been counted in the light of the claimed agreement lacks

merit.     Additionally, Orr has not provided a valid basis for not

counting his other prior convictions.           He was given an opportunity

at sentencing to contest them, and did so.             In sum, Orr has not

shown error in the district court’s application of § 841.

                                       K.


                                       18
     Orr asserts the district court clearly erred by attributing,

based on trial testimony, 28 ounces of cocaine to him as relevant

conduct.     Orr has not provided any record citations or legal

authority in support of this argument.              Therefore, we will not

consider it because it is inadequately briefed.                 See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

                                       L.

     Concerning the supervised release portion of his sentence, Orr

contends    the     district    court’s   application   of    the   sentencing

enhancements under U.S.S.G. § 4B1.1 (career offender enhancement)

and 21     U.S.C.    §   851   (enhancement   for   prior    convictions)   was

erroneous because it resulted in using the same information twice

to “double enhance” the term of such release.                  Orr offers no

argument or citation in support of this assertion. Because Orr has

not adequately briefed this issue, we do not consider it.              See id.

                                       M.

     For the first time on appeal and prior to Booker being

rendered, Orr urged in his reply brief that his sentence be

reviewed under Blakely v. Washington, 124 S. Ct. 2531 (2004),

because he received a life sentence on the conspiracy count, even

though the maximum statutory sentence was 40 years of imprisonment.

(Also prior to Booker being rendered, Orr prepared, pro se, a

supplemental pleading seeking review under Blakely for his role in

the offense, the drug weight, his career offender status, and his


                                       19
statutory sentence enhancement.       Orr’s counsel forwarded this to

our court for filing, but without adopting it.           Orr does not have

a “constitutional right to hybrid representation”.             United States

v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir.), cert. denied, 528

U.S. 1055 (1999) (quotation omitted). “By accepting the assistance

of counsel [Orr] waives his right to present pro se briefs on

direct appeal.”     Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir.

1996); see also 5TH CIR. R. 28.7 (“Unless specifically directed by

court order, pro se motions, briefs or correspondence will not be

filed if the party is represented by counsel.”).             Therefore, we do

not consider these pro se issues.)

     Oral argument was held for this appeal after Booker was

rendered early this year, with supplemental briefs on Booker being

received   before   argument.    Booker   held   the    federal      sentencing

guidelines are advisory only.       125 S. Ct. at 757.        Following oral

argument, our court decided United States v. Mares, 402 F.3d 511

(5th Cir. 4 March 2005), petition for cert. filed, No. 04-9517

(U.S. 31 Mar. 2005), which articulated our understanding of Booker.

As noted, Orr did not raise the below discussed Booker-issues at

trial.    Therefore, review is only for plain error.          See Mares, 402

F.3d at 520.

     In    his   post-Booker     brief,   Orr    requested:       remand    for

resentencing     because   his    sentence      did    not    meet     Booker’s



                                    20
reasonableness standard; and review of his sentence enhancements.

As discussed, his enhancements were based on prior convictions

which need not be proven to a jury beyond a reasonable doubt.       See

Booker, 125 S. Ct. at 756 (citing Apprendi v. New Jersey, 530 U.S.

466, 490 (2000) (“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”) (emphasis added)). In sum, there was no error,

much less reversible plain error.

                                  N.

     Orr maintains the cumulative effect of the claimed errors

warrants a new trial or dismissal of the indictment with prejudice.

Obviously,   because   Orr’s   contentions   fail   for   each   issue,

cumulative error analysis is unnecessary.      Cf. United States v.

Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992) (holding “[b]ecause we

find no merit to any of Moye's arguments of error, his claim of

cumulative error must also fail” (emphasis in original)).

                                III.

     For the foregoing reasons, Orr’s conviction and sentence are

                                                          AFFIRMED.




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