                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 19, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50456
                         Summary Calendar


UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

versus

IRVIN LEWIS DUKES,

                               Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 5:02-CR-215-1-OG
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Irvin Lewis Dukes appeals his conviction and sentence for

conspiring to possess with intent to distribute more than five

kilograms of cocaine, aiding and abetting the possession of more

than 500 grams but less than five kilograms of cocaine, and

aiding and abetting the carrying, possessing, brandishing, and

discharging of a firearm during a drug-trafficking offense.

Given that no evidence exits that jurors saw Dukes handcuffed,

and in light of the district court’s curative instruction, the

district court did not abuse its discretion when it denied

     *
       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this opinion should not be published and is not precedent except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. 04-50456
                                -2-

Dukes’s motion for a mistrial.   See United States v. Solis, 299

F.3d. 420, 441-42 (5th Cir. 2002); United States v. Honer, 225

F.3d 549, 555-56 (5th Cir. 2000); Hardin v. United States, 324

F.2d 553, 554 (5th Cir. 1963).

     Dukes’s argument that the evidence was insufficient to

convict him of conspiracy to possess with intent to distribute

five kilograms of cocaine is unavailing.   Detective Brittain’s

testimony provided evidence of a knowing and voluntary agreement

between two or more people to violate federal narcotics laws.

See United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996).

Dukes’s argument that the verdict is irreconcilable with the

district court’s sentence, which was based on only two kilograms,

fails because the Government was not required to prove that Dukes

was reasonably capable of producing the cocaine that he agreed to

deliver.   See United States v. Turner, 319 F.3d 716, 721-22 (5th

Cir. 2003); Gonzales, 79 F.3d at 423.

     Dukes’s argument that his sentence must be reversed in light

of Blakely v. Washington, 124 S. Ct. 2531 (2004), and United

States v. Booker, 125 S. Ct. 738 (2005), is raised for the first

time on direct appeal and is, therefore, reviewed for plain

error.   See United States v. Cotton, 535 U.S. 625, 631, 32

(2002); United States v. Mares, ___ F.3d ___, No. 03-20135, 2005

WL 503715 at *7 (5th Cir. Mar. 4, 2005).   Dukes fails to

establish plain error because he fails to carry his burden of

demonstrating that he would have received a different sentence
                           No. 04-50456
                                -3-

had he been sentenced under the Booker advisory Guidelines regime

rather than the pre-Booker mandatory regime.   See Mares, 2005 WL

503715 at *9.

     De novo review of Dukes’s argument that the district court

erred when it increased his offense level under U.S.S.G.

§ 3A1.2(b)(1) reveals that it is unavailing in light of Officer

Litton’s testimony.   See United States v. Villegas, ___ F.3d ___,

2005 WL 627963 at ** 4-5 (5th Cir. Mar. 17, 2005); United States

v. Ortiz-Granados, 12 F.3d 39, 42 (5th Cir. 1994).   Dukes’s

argument that the district court’s application of U.S.S.G.

§ 3A1.2(b)(1) constituted double counting in violation of the

Double Jeopardy Clause also fails.   See United States v. Hudson,

522 U.S. 93, 98 (1994).

     AFFIRMED.
