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

                                                                    FILED
                                                                  November 2, 2007
                                 No. 07-50167
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

BARRY CHARLES DOCKERY

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 1:06-CR-148-ALL


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Barry Charles Dockery was convicted by a jury on the following charges:
possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1); unlawful
possession of an unregistered firearm in violation of 26 U.S.C. § 5861; possession
of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c); conspiracy to distribute and to possess with intent to distribute
marijuana and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)-(D),
846; possession of cocaine base with intent to distribute, in violation of 21 U.S.C.

      *
      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should not be published and is not precedent except under the limited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. 07-50167

§ 841(a)(1), (b)(1)(C); and possession of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). He now challenges the district
court’s determination of drug quantity, which he contends increased his offense
level from 20 to 32, resulting in an increase in his sentencing range from 70 to
87 months to a range of 210 to 240 months (taking into consideration the
statutory maximum). According to Dockery, the court should have employed a
higher burden of proof than the ordinary preponderance of the evidence standard
because the weak evidence supporting the drug quantity resulted in a
significantly increased sentence; thus, the sentencing fact became the tail
wagging the dog of the substantive offense.
      Dockery did not raise an objection to the standard of proof in the district
court, arguing only that the testimony was not sufficiently reliable. Thus, we
review only for plain error. See United States v. Cabral-Castillo, 35 F.3d 182,
188-89 (5th Cir. 1994). Although we have acknowledged that a higher burden
may be necessary in certain cases involving a dramatic increase in sentencing
based on judicial factfinding, we have never expressly adopted this “tail wags the
dog” doctrine. See United States v. Harper, 488 F.3d 732, 734 n.1 (5th Cir. 2006);
United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993). Accordingly, the
district court’s use of the ordinary preponderance standard was not plain, i.e.,
obvious error. See United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007).
In addition, even if the doctrine were applicable, the increase in sentencing in
this case is not so dramatic that it justifies a higher burden of proof. See United
States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994).         The district court
committed no error, plain or otherwise.
      Although Dockery complains that the evidence of additional drug quantity
in this case was weak, that is a factual determination that we will not disturb
absent clear error. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005). We find no such error here. See id. at 246-47.
      The judgment of the district court is AFFIRMED.

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