     Case: 09-60936     Document: 00511204484          Page: 1    Date Filed: 08/16/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 16, 2010
                                     No. 09-60936
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DENNIS ROGERS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:05-CR-19-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Dennis Rogers appeals the sentence imposed following his guilty plea
conviction for distribution of cocaine base. According to Rogers, the district court
erred in considering as relevant quantity the drug quantity alleged in count two
of the indictment, which was dismissed. He contends that when he pleaded
guilty, he believed his sentence would be based solely on the count to which he
pleaded guilty. He also asserts that the district court erred in denying his



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60936   Document: 00511204484 Page: 2       Date Filed: 08/16/2010
                                   No. 09-60936

motion for a downward departure based in part of this ground without analysis
and without providing reasons for its decision.
         Because Rogers did not raise this argument in the district court, review
is limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). To show plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. See id. If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
         Rogers has not shown that the district court plainly erred in considering
the drug quantity alleged in count two as relevant conduct in calculating his
offense level. The indictment and the factual basis provided that Rogers made
two separate distributions of cocaine base to the same confidential informant at
the same location within a one-month period. At the rearraignment, Rogers
admitted that the facts set forth in the factual basis were true. Given the degree
of similarity, regularity, and the close temporal proximity of the two
distributions, there was no error, plain or otherwise, in the district court’s
determination that the offenses were part of a common scheme or plan. See
United States v. Ocana, 204 F.3d 585, 591 (5th Cir. 2000); see also United States
v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993); United States v. Bethley, 973 F.2d
396, 401 (5th Cir. 1992). This argument, therefore, does not warrant reversal
of the sentence imposed.
         Because the district court heard arguments regarding Rogers’s motion for
a downward departure and implicitly denied it by imposing a guidelines
sentence, this court has no jurisdiction to consider his argument challenging the
denial of the downward departure. See United States v. Hernandez, 457 F.3d
416, 424 (5th Cir. 2006). To the extent that Rogers sought a variance based on
United States v. Booker, 543 U.S. 220 (2005), he has not shown that his within
guidelines sentence was unreasonable. See United States v. Gomez-Herrera, 523

                                         2
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                                   No. 09-60936

F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). We dismiss the
portion of the appeal challenging the denial of the downward departure and
affirm the sentence.
      The appeal of the downward departure denial is DISMISSED; the sentence
is AFFIRMED.




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