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

                                                 FILED
                                                                         December 21, 2009
                                     No. 09-50418
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERT ALAN THOMPSON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:08-CR-255-2


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Robert Alan Thompson pleaded guilty to one count of conspiring to
manufacture 50 grams or more of methamphetamine and conspiring to possess
pseudoephedrine with intent to manufacture methamphetamine. See 21 U.S.C.
§§ 841 and 846. The district court sentenced Thompson to, inter alia, 184
months’ imprisonment. Thompson appeals his sentence, claiming: the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50418

court erred in calculating the amount of methamphetamine for which he was
responsible, and so erred in calculating his base-offense level; and, his sentence
is greater than necessary to accomplish the 18 U.S.C. § 3553(a)(2) sentencing
objectives.
      The Government contends that Thompson waived his right to appeal.
Because the magistrate judge did not discuss with Thompson the waiver
provision of his plea agreement at rearraignment, as was required by Federal
Rule of Criminal Procedure 11(b)(1)(N), and because it is unclear from the record
whether Thompson read and understood his plea agreement and had no
questions regarding the waiver provision, the waiver will not be enforced. See
United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      Regarding his contention that the district court erred in ruling that
Thompson was accountable for 180.57 grams of methamphetamine, Thompson
admitted he purchased 361.14 grams of the precursor chemical pseudoephedrine.
He maintains, however, that the district court’s application of a 50% conversion
ratio was premised on assumptions rather than on evidence. The Sentencing
Guidelines have established a 50% conversion ratio from pseudoephedrine to
methamphetamine. See U.S.S.G. §§ 2D1.1(c), 2D1.11(d); see also United States
v. Martin, 438 F.3d 621, 625, 633 (6th Cir. 2006). Accordingly, the district court
neither misapplied the Guidelines nor clearly erred in ruling that Thompson was
responsible for 180.57 grams of methamphetamine.

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                                  No. 09-50418

      Regarding his contention that his 184-month sentence is unreasonable,
Thompson did not object to the reasonableness of his sentence in the district
court. Therefore, review is only for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). For there
to be reversible plain error, the district court must have committed a clear or
obvious error that affected Thompson’s substantial rights; even then, we have
discretion whether to correct such error and, generally, will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert.
denied, 129 S. Ct. 962 (2009).
      The district court stated that it had taken into account the sentencing
factors in § 3553(a) in determining Thompson’s sentence. “[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant”.             United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008).   Thompson has not shown that the district court plainly erred in
determining that a 184-month sentence of imprisonment, which was within the
advisory guideline range, satisfied the sentencing objectives of § 3553(a).
      AFFIRMED.




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