                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                                F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                               December 1, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                           No. 05-51557
                                         Summary Calendar


UNITED STATES OF AMERICA,

                                                                                           Plaintiff-
                                                          Appellee,

                                                 versus

MICHAEL LUONG,

                                                                                     Defendant-
                                                          Appellant.

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                           Appeal from the United States District Court
                                  for the Western District of Texas
                                      USDC No. 1:05-CR-88-2
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Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Michael Luong was convicted of one count of conspiracy to possess 100 kilograms or more

of marijuana with intent to distribute and one count of money laundering. The district court

sentenced him to serve 292 months in prison on the former charge and 240 months on the latter

charge. Luong now appeals his sentence.




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-51557
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       Luong argues that the sentencing procedures violated his rights under the Indictment Clause

and that this court’s jurisprudence following United States v. Booker, 543 U.S. 220 (2005), has

effectively rendered the Guidelines mandatory. Luong has not shown plain error with respect to these

arguments. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005). Luong’s arguments concerning the Ex Post Facto and Confrontation Clauses

are, as he concedes, foreclosed. See United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir.

2005); United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).

       Luong presented no evidence to rebut the facts contained in the PSR and has failed to show

that the district court plainly erred by relying on those facts to determine his relevant conduct at

sentencing. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); United States v.

Betancourt, 422 F.3d 240, 248 (5th Cir. 2005). Luong’s use of marijuana betwixt rearraignment and

sentencing provides a sufficient foundation for the district court’s denial of his requested adjustment

for acceptance of responsibility. See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002);

United States v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990). Luong has shown no error in relation

to the district court’s imposition of an adjustment to the offense level for his money laundering

offense, as his sentence for this offense was within statutory limits. See Valenzuela-Quevedo, 407

F.3d at 732-33.

       The judgment of the district court is AFFIRMED.




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