                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 10, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40298
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RICHARD L. CRAIG; ROBIN L. ROSS, also known as Twice R.,

                                     Defendants-Appellants.

                          --------------------
            Appeals from the United States District Court
                  for the Southern District of Texas
                         USDC No. 3:01-CR-11-1
                          --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Richard L. Craig and Robin L. Ross appeal their convictions

and sentences for conspiracy to possess stolen mail matter and to

commit money laundering and nine counts of possession of stolen

mail matter.    Craig argues that the district court erred by

denying his motion to dismiss the charges against him based upon

an alleged Brady** violation.    Craig further asserts that the

district court erred by using the 2000 guidelines, the guidelines


     *
       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this opinion should not be published and is not precedent except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.
     **
          See Brady v. Maryland, 373 U.S. 83 (1963).
                             No. 04-40298
                                  -2-

in effect at the time of his offenses, instead of the 2003

guidelines, the guidelines in effect at the time of his

sentencing.   For the first time on appeal, Craig contends that

the district court’s application of a four-level enhancement to

his offense level for his being an organizer or leader of a

criminal activity involving five or more participants was

unconstitutional under Blakely v. Washington, 124 S.Ct. 2531

(2004).

     Ross argues that the district court clearly erred by finding

that he was a manager or supervisor of the criminal activity and

that the district court erred by applying the 2000 guidelines

instead of the 2003 guidelines without sufficiently explaining

its reasoning.   Ross additionally asserts that the district court

erred by finding that he would receive a lesser sentence under

the 2000 guidelines because his base offense level would be lower

under the 2003 guidelines.    While Ross may have had a lower base

offense level under the 2003 guidelines, the district court

adopted the probation officer’s finding that Ross’s total offense

level would have been higher under the 2003 guidelines because of

adjustments to the base offense level.      As Ross has not

challenged the district court’s finding that his total offense

level was lower under the 2000 guidelines, he has waived any such

argument and failed to show that the district court erred.     See

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).
                           No. 04-40298
                                -3-

     Given the overwhelming evidence against Craig presented at

trial and that the allegedly exculpatory statements suppressed by

the Government were presented to the jury, Craig has not shown

that there is a reasonable probability that the result of his

trial would have been different if the statements had been

disclosed to him prior to trial.   See United States v. Freeman,

164 F.3d 243, 248-49 (5th Cir. 1999).     Accordingly, Craig has not

shown that the Government committed a Brady violation or that the

district court erred by denying his motion to dismiss.     See

Little v. Johnson, 162 F.3d 855, 861-62 (5th Cir. 1998).

     Craig’s guidelines sentencing range under the 2003

guidelines would have been higher than his guidelines sentencing

range under the 2000 guidelines.   Accordingly, the district court

did not err by using the 2000 guidelines to calculate Craig’s

sentence.   See United States v. Thomas, 12 F.3d 1350, 1370 (5th

Cir. 1994).   Craig’s Blakely argument is foreclosed by this

court’s opinion in United States v. Pineiro, 377 F.3d 464, 473

(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)

(No. 04-5263).

     The evidence before the district court showed that Ross

recruited co-conspirators and, at times, directed their actions.

Accordingly, the district court’s finding that Ross was a manager

or supervisor of the criminal activity and its application of a

three-level enhancement pursuant to U.S.S.G. § 3B1.1(b) was not
                           No. 04-40298
                                -4-

clearly erroneous.   See United States v. Palomo, 998 F.2d 253,

257-58 (5th Cir. 1993).

     At Ross’s sentencing, the district court adopted the

findings and reasoning of the presentence report and its addenda,

which explained that the 2000 guidelines were used because using

the 2003 guidelines would result in an ex post facto violation.

By adopting the presentence report, the district court made the

necessary findings and sufficiently explained its reasoning.      See

United States v. Gallardo-Trapero, 185 F.3d 307, 323-24 (5th Cir.

1999).

     AFFIRMED.
