     Case: 12-30955       Document: 00512258862         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-30955
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEVEN WEATHERSBY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-265-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Steven Weathersby appeals his convictions and sentences for two counts
of distribution of cocaine hydrochloride and one count of distribution of 28 grams
or more of cocaine base. He asserts that his convictions and sentences for two
separate counts of distribution of cocaine hydrochloride and cocaine base on the
same date to the same person violate the Double Jeopardy Clause. Because he
did not challenge the indictment on this ground in a pretrial motion, he waived
a claim challenging the multiplicity of the convictions. See United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-30955

Dixon, 273 F.3d 636, 642 (5th Cir. 2001); United States v. Marroquin, 885 F.2d
1240, 1245 (5th Cir. 1989). Weathersby, however, may challenge the multiplicity
of his sentences for the first time on appeal. See Dixon, 273 F.3d at 642.
Because he did not raise this argument in the district court, review is limited to
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      The district court’s imposition of multiple sentences for two simultaneous
offenses involving the distribution of cocaine hydrochloride and distribution of
cocaine base did not constitute plain error. Cocaine hydrochloride and cocaine
base are chemically different, and Congress has long treated them differently for
sentencing purposes. DePierre v. United States, 131 S. Ct. 2225, 2228-29 (2011).
Because Congress has enacted statutes that separately punish these acts, there
is no double jeopardy violation. See United States v. Smith, 354 F.3d 390, 398
(5th Cir. 2003); see also United States v. Davis, 656 F.2d 153, 159 (5th Cir. 1981).
Therefore, multiple sentences for the distribution of cocaine hydrochloride and
the distribution of cocaine base are not multiplicitous. See Davis, 656 F.2d at
159; see also Smith, 354 F.3d at 398-400. The district court’s imposition of
multiple sentences for these offenses did not constitute plain error. See Puckett,
556 U.S. at 135.
      According to Weathersby, the district court made a significant procedural
error in that it improperly treated a single violation of § 841 as two offenses. He
is effectively reasserting his argument that the sentences are multiplicitous. As
discussed above, this argument lacks merit. Because he has not identified any
other error in the district court’s calculation of the advisory guidelines range, he
has not shown that the district court committed a significant procedural error
in determining his sentence. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      Finally, Weathersby argues that the sentence imposed by the district court
was substantively unreasonable because the district court did not give sufficient
weight to his difficult childhood and because the career offender guideline

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                                  No. 12-30955

overstated the seriousness of his offense and the amount of prison time
necessary to provide just punishment and adequate deterrence.
      The sentence imposed by the district court was within the advisory
guidelines range and, therefore, was presumptively reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court considered
Weathersby’s arguments for a lesser sentence based on his difficult childhood,
as well as his criminal history and characteristics and the 18 U.S.C. § 3553(a)
factors. The district court noted that he had seven prior convictions, he was
serving a term of probation when he committed the instant offense, he had a
history of substance abuse, and he had almost no work history. The district
court did not find that his history and characteristics were so atypical that his
case was distinguishable from typical career offender guideline cases in view of
the § 3553(a) factors. Weathersby is essentially asking this court to reweigh the
§ 3553(a) factors, which we should not do. His arguments are insufficient to
rebut the presumption of reasonableness. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010) (finding that defendant’s disagreement with propriety
of sentence did not suffice to rebut presumption of reasonableness that attaches
to within-guidelines sentence); United States v. Rodriguez, 523 F.3d 519, 526
(5th Cir. 2008) (finding various arguments for a non-guidelines sentence
presented no reason to disturb the presumption of reasonableness).
      AFFIRMED.




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