                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   March 6, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 06-50652
                         Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GABRIEL LEE SHIPP,
                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:06-CR-37-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gabriel Lee Shipp appeals the 151-month sentence imposed

following his guilty-plea conviction for possession with intent

to distribute more than 500 grams of a mixture and substance

containing a detectable amount of methamphetamine.     This court

reviews the district court’s interpretation and application of

federal Sentencing Guidelines de novo.    United States v. Sprick,

233 F.3d 845, 852 (5th Cir. 2000).

     Shipp’s sentence was determined, in part, by application of

the guideline for methamphetamine (actual).   Shipp argues that


     *
       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this opinion should not be published and is not precedent except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. 06-50652
                                 -2-

the district court violated his right to due process by applying

this guideline when there exists a guideline for mixtures.    He

contends that concern for the uniform application of the

guidelines and the rule of lenity weigh in favor of application

of the guideline for mixtures.

     There is a rational basis for the different treatment of

methamphetamine (actual) and methamphetamine under the Sentencing

Guidelines, and the Guidelines do not violate due process in this

regard.   See United States v. Molina, 469 F.3d 408, 413 (5th Cir.

2006).    The methamphetamine guidelines are not subject to

arbitrary application.    Id.   Shipp has not shown error.

     Shipp also contends that his Sixth Amendment rights were

violated by the determination of his sentence under the guideline

for methamphetamine (actual) given that he was convicted for

possessing a mixture and substance containing methamphetamine.

The Guidelines provide that, “[i]n the case of a mixture or

substance containing . . . methamphetamine, use the offense level

determined by the entire weight of the mixture or substance, or

the offense level determined by the weight of the . . .

methamphetamine (actual), whichever is greater.”    § 2D1.1(c) n.B.

Under the Guidelines, then, the application of the guideline for

methamphetamine (actual) is a product of a factual finding by the

district court, which does not violate the Sixth Amendment after

United States v. Booker, 543 U.S. 220 (2005).     See United States
                            No. 06-50652
                                 -3-

v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert. denied, 126

S. Ct. 2884 (2006).   Shipp has failed to demonstrate error.

     Finally, Shipp argues that the district court erred in

considering methamphetamine amounts as relevant conduct that were

not admitted by him or charged in the information.    Shipp

concedes that, under United States v. Alonzo, 435 F.3d 551, 553

(5th Cir. 2006), the district court was permitted to make factual

findings concerning relevant conduct without judicial admission

or a jury finding.    He contends, however, that Alonzo was wrongly

decided, and he wishes to preserve the issue for Supreme Court

review.

     Absent an en banc determination or Supreme Court decision to

the contrary, Alonzo is binding.   See United States v. Stone, 306

F.3d 241, 243 (5th Cir. 2002).   Accordingly, Shipp’s contention

that the district court erred in considering facts not admitted

by him or charged in the information is unavailing.

     AFFIRMED.
