                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 9, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40778
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                       EDDIE SANFORD SPYKES,

                                                 Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 4:01-CR-44-3
                       --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

     Eddie Sanford Spykes (Spykes) appeals the sentence imposed

after his plea of guilty to one count of conspiring to manufacture

methamphetamine between 1988 and 2001.         He contends that the

district court erred by applying the 1998 edition of the Sentencing

Guidelines to relevant conduct that occurred in 1988.       He did not

object to the edition of the guidelines used in the district court,

so we review only for plain error.   See United States v. Krout, 66

F.3d 1420, 1434 (5th Cir. 1995).

     1
        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that this opinion should not be published and is not precedent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.
     The record refutes Spykes’s contention that the district court

applied U.S.S.G. § 2D1.11, a guideline that did not take effect

until 1991.   Spykes benefitted when the district court declined to

apply the 2002 edition of guidelines due to ex post facto concerns

about a provision that would have raised Spykes’s offense level.

See U.S.S.G. § 1B1.11(b)(1).   The district court’s application of

guidelines that were in effect during the conspiracy was not a

clear or obvious error that affected Spykes’s substantial rights.

See U.S.S.G. § 1B1.11, comment. (n.2); United States v. Thomas, 12

F.3d 1350, 1370-71 (5th Cir. 1994).   The judgment of the district

court is AFFIRMED.

     AFFIRMED.




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