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

                                                                    FILED
                                                                 November 25, 2008
                                No. 08-50051
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

REGINALD KENNEDY, also known as Reginald Donnell Kennedy

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:07-CR-126-1


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Reginald Kennedy, also known as Reginald Donnell Kennedy, appeals the
164-month and 24-month sentences imposed following his guilty plea conviction
for conspiracy to possess with intent to distribute cocaine and crack cocaine and
possession with intent to distribute cocaine. Kennedy argues that the district
court erred by imposing the sentences to run consecutively for a total sentence
of 188 months of imprisonment. He contends that the imposition of consecutive
sentences violates the spirit of 18 U.S.C. § 3584, the purposes of 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should not be published and is not precedent except under the limited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.
                                  No. 08-50051

and the policy statements of the Sentencing Commission. He asserts that
because his counts were grouped together under U.S.S.G. § 3D1.2 and his 164-
month sentence for count one was adequate to achieve the total punishment, his
sentence for count two should have been imposed to run concurrently with the
164-month sentence, as required by U.S.S.G. § 5G1.2(c). Kennedy does not
challenge the district court’s calculation of the applicable sentencing range, nor
does he argue that his sentence is unreasonable.
      Where, as here, the defendant fails to object to his sentence during
sentencing, review is for plain error. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). To establish plain
error, Kennedy must show: (1) that there is an error; (2) that the error is clear
or obvious; and (3) that the error affected his substantial rights. United States
v. Olano, 507 U.S. 725, 731-37 (1993). If these factors are established, the
decision to correct the forfeited error is within this court’s sound discretion,
which will not be exercised unless the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id. at 736.
      Kennedy has failed to demonstrate that any error was clear or obvious.
See Olano, 507 U.S. at 734-35. He has also failed to demonstrate with sufficient
or reasonable probability that if not for the district court’s misapplication of the
Guidelines he would have received a lesser sentence. United States v. Villegas,
404 F.3d 355, 364-65 (5th Cir. 2005).         Kennedy has therefore failed to
demonstrate that the error affected his substantial rights. See Olano, 507 U.S.
at 734-35.
      Accordingly, the judgment of the district court is AFFIRMED.




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