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

                                                                 FILED
                                                              December 15, 2008
                                 No. 07-51347
                               Summary Calendar           Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

RODOLFO RODRIGUEZ

                                         Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                             USDC No. 07-51347


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Rodolfo Rodriguez appeals the sentence imposed by the district court
following his guilty plea to possession with the intent to distribute cocaine
within 1000 feet of a private school. Although the record contains a plea
agreement in which Rodriguez waived his right to appeal his sentence, the
Government has not invoked the waiver. See United States v. Acquaye, 452 F.3d
380, 381-82 (5th Cir. 2006).



      *
      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should not be published and is not precedent except under the limited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. 07-51347

      Rodriguez argues that he is entitled to have his sentence vacated and his
case remanded for resentencing in order to receive a two-level reduction in his
offense level based on a retroactive amendment to the Guidelines that occurred
days after he was sentenced. Effective November 1, 2007, the Sentencing
Commission adopted Amendment 706, which modified the Guidelines ranges
applicable to crack cocaine offenses in order to reduce the disparity between
crack cocaine and powder cocaine sentences. See United States v. Burns, 526
F.3d 852, 861 (5th Cir. 2008). In general, the effect of Amendment 706 is to
decrease by two levels the base offense levels for crack cocaine offenses. Id.
      Although the record indicates that the pendency of Amendment 706 was
understood by all parties, counsel never identified the pendency of the
amendment as an infirmity in Rodriguez’s sentence. Accordingly, we will review
for plain error. See United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992).
To establish plain error, the appellant must show an error that is clear or
obvious and that affects his substantial rights. United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008). If the appellant makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      “A sentencing court must apply the version of the sentencing guidelines
effective at the time of sentencing unless application of that version would
violate the Ex Post Facto Clause of the Constitution.” United States v. Rodarte-
Vasquez, 488 F.3d 316, 322 (5th Cir. 2007) (quoting United States v. Kimler, 167
F.3d 889, 893 (5th Cir. 1999)). Such a violation occurs when application of the
Guidelines in effect at sentencing results in a harsher penalty than would
application of the Guidelines in effect when the offense was committed. Kimler,
167 F.3d at 893. The district court did not plainly err by failing to consider the
effect of the then-pending amendments to the Guidelines in determining
Rodriguez’s offense level . Our decision does not preclude future consideration



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                                  No. 07-51347

of this issue in motion pursuant to 18 U.S.C. § 3582. See United States v. Fields,
72 F.3d 1200, 1215 (5th Cir. 1996).
      Rodriguez also argues, for the first time on appeal, that the district court
erred in failing to apply a “proper” conversion ratio between the powder cocaine
he sold and the crack cocaine that resulted after the powder was converted into
crack. He argues that the district court plainly erred in adopting an implied 1
to 1 ratio set forth in the presentence report.
      On plain error review, this court will uphold the sentence if, on remand,
the district court could reinstate the same sentence absent the error. United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003). Although he does not offer
a correct ratio, Rodriguez does suggest that the “crack manufacturing process
reduced the amount of crack to the next lowest Guideline level.” In United
States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003), this court noted that a DEA
chemist had put forth a “conservative and realistic” 1 to. 5 ratio. Id. at 413-14
& n.3. Application of a 1 to .5 ratio would result in Rodriguez’s base offense level
being reduced to the next lowest Guideline level, or a 36. With the two-level
increase for obstruction of justice that is not disputed by Rodriguez, Rodriguez’s
potential sentencing range would have been 235 to 293 months of imprisonment.
Because the district court could reinstate Rodriguez’s 292-month sentence
absent the alleged conversion error, Rodriguez’s sentence is AFFIRMED. See
Wheeler, 322 F.3d at 828.




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