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

                                                                            FILED
                                                                           June 17, 2008
                                     No. 07-10598
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

RAMIRO MAGDALENO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northen District of Texas
                             USDC No. 4:06-CR-204-4


Before JONES, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ramiro Magdaleno appeals his guilty plea conviction for possession with
intent to distribute more than 50 kilograms of marijuana and aiding and
abetting.    He argues that he was deprived of due process and his Sixth
Amendment right to a jury trial because he was sentenced based on facts not
admitted by him or found by a jury. Because Magdaleno did not raise this issue
in the district court, review is limited to plain error. See United States v. Green,
324 F.3d 375, 381 (5th Cir. 2003). Magdaleno has not shown any error, plain or


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10598

otherwise, as this court has held that after United States v. Booker, 543 U.S. 220
(2005), the Sixth Amendment does not prevent a sentencing judge from finding
all facts relevant to sentencing. See United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006).
      Magdaleno avers that the district court reversibly erred in failing to sua
sponte conduct a FED. R. CRIM. P. 44(c)(1)(B) & (2) hearing to determine whether
a conflict of interest existed. Magdaleno has failed to demonstrate an actual
conflict of interest. See United States v. Lyons, 703 F .2d 815, 820 (5th Cir.
1983). Therefore, the district court did not err in failing to conduct a hearing
pursuant to FED. R. CRIM. P. 44(c). See id. The judgment of the district court is
AFFIRMED.




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