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

                                                                            FILED
                                                                         February 9, 2009
                              No. 08-40294 c/w 08-40296
                                 Summary Calendar                     Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

CEDRIC ROMONE GARDNER,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:03-CR-27-1
                            USDC No. 5:04-CR-3-ALL



Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Cedric Romone Gardner appeals from his convictions of conspiracy to
distribute cocaine and conspiracy to launder money. Gardner contends that the
two-level adjustment to his offense level for his role in the offense violated
United States v. Booker, 543 U.S. 220 (2005), because the enhancement was not
included in the indictment and his statements were insufficient to establish facts
to support an adjustment based on his role in the offense. Gardner also contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40294 c/w No. 08-40296

that his 133-month sentence for money-laundering conspiracy was erroneous
because the presentence report indicated that a 21–27 month sentence was
appropriate.
       The Government contends that Gardner’s contentions were waived by the
appeal-waiver provision of his plea agreement.             However, the prosecutor
explained the plea agreement at Gardner’s rearraignment in terms indicating
that Gardner could appeal any sentencing issues, contrary to the terms of the
written plea agreement. The appeal-waiver provision will not be enforced. See
United States v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).
       Gardner was sentenced in 2004, before Booker was decided. In Booker, the
Supreme Court held that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at
244.
       Gardner may have invited any error as to the two-level adjustment by
agreeing to it (as opposed to the four-level adjustment recommended by the
probation officer). However, we review for plain error out of an abundance of
caution. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir.
2006). To show plain error, Gardner must demonstrate that (1) there was an
error; (2) the error was clear or obvious; and (3) the error affected his substantial
rights. See United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).
In order for an error to affect substantial rights, it must have been prejudicial,
that is, it must have affected the outcome of the proceedings. United States v.
Olano, 507 U.S. 725, 734 (1993). In addition, this court will not exercise its
discretion to correct the forfeited error “unless the error seriously affects the
fairness,   integrity,   or   public   reputation     of    judicial   proceedings.”
Izaguirre-Losoya, 219 F.3d at 441 (quoting United States v. Ferguson, 211 F.3d
878, 886 (5th Cir. 2000)). In order to demonstrate prejudice in the Booker
context, the defendant must show “that the sentencing judge—sentencing under

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an advisory scheme rather than a mandatory one—would have reached a
significantly different result.” United States v. Mares, 402 F.3d 511, 521 (5th
Cir. 2005).
      Gardner cannot demonstrate that any Booker error as to the two-level
adjustment was prejudicial to him. The district court imposed a sentence in the
middle of the applicable 121–151 month guideline sentencing range and
commented that Gardner probably deserved a longer prison term. The district
court noted the history of Gardner’s case and the financial transactions involving
the purchase of his home then concluded that Gardner was “not a newcomer to
drugs and the sale of drugs.” However, the district court noted that none of
Gardner’s criminal history was drug related. Gardner cannot show that the
district court would have imposed a lower sentence under an advisory guideline
sentencing scheme. See id.
      Gardner did not object in the district court that his sentence for money-
laundering conspiracy should have been within the 21–27 month range provided
in the PSR. Gardner’s contention is reviewed for plain error. See Izaguirre-
Losoya, 219 F.3d at 441.
      Gardner’s drug-conspiracy and money-laundering-conspiracy offenses were
grouped for sentencing as closely related counts, pursuant to United States
Sentencing Guidelines § 3D1.2. The offense level relevant to the drug conviction
therefore was used for both convictions, pursuant to § 3D1.3(a), which advises
district courts to use the offense level for the most serious count in a group,
rendering the calculations for the money-laundering conspiracy conviction
irrelevant to the final sentence imposed. Gardner does not contend that the
grouping of his offenses was erroneous. See United States v. Rice, 185 F.3d 326,
328-29 (5th Cir. 1999) (applying grouping rules where a defendant was convicted
of closely related drug and money-laundering offenses). Moreover, Gardner’s
sentence was below the 20-year statutory maximum sentence for money-



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laundering conspiracy. 18 U.S.C. § 1956(a)(3), (h). Gardner has not shown
error, plain or otherwise, as to his sentence for money-laundering conspiracy.
      AFFIRMED.




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