                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 15, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-11174
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

KELDRIC WALKER THOMAS,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:03-CR-174-ALL-N
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Keldric Walker Thomas pleaded guilty to possession of a

firearm in furtherance of a drug trafficking crime and to

possession with intent to distribute 5 or more grams of crack

cocaine.   He appeals his sentence on the drug possession offense,

arguing for the first time on appeal that the district court

erred by determining his guideline range based a greater quantity

of drugs than pleaded in the indictment, in violation of United

States v. Booker, 125 S. Ct. 738, 756 (2005).    He also asserts


     *
       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this opinion should not be published and is not precedent except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. 03-11174
                                 -2-

for the first time that the district court erred in imposing a

sentence under a mandatory guideline scheme, also in violation of

Booker, 125 S. Ct. at 756-57.

     This court reviews these arguments for plain error.   See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005); United States v.

Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).   Thomas’s first argument lacks merit; his guideline range

was based on the amount of drugs which he admitted.   See Booker,

125 S. Ct. at 756.

     Thomas argues that, based on the sentencing court’s comments

and on an independent review of the sentencing factors enumerated

in 18 U.S.C. § 3553(a), there is a reasonable probability that

the district court would have imposed a lesser sentence under an

advisory system.**   There is nothing in the district court’s

remarks or otherwise in the record which gives any clue that the

district court would have imposed a different sentence under an


     **
        For the purpose of preserving the issues for further
review, Thomas argues that the substantial-rights prong must not
require proof by a preponderance of the evidence that the error
more likely than not affected the outcome of his sentence; that a
strict plain-error approach should not be applied because he
could not have anticipated the change to an advisory system made
by Booker; that this court should not focus too restrictively on
the sentencing court’s remarks; that Fanfan error is immune from
the substantial-rights prong of the plain error test because the
error is structural or that prejudice should be presumed; and
that this court should order a limited remand to determine the
likely sentence under the advisory guidelines, as was done in
Booker. These argument are foreclosed. See Mares, 402 F.3d at.
521; United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 194 (2005).
                            No. 03-11174
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advisory scheme.   Congress has rejected the Sentencing

Commission’s reports regarding the sentencing-disparity issue

and, thus, the sentencing guidelines continue to treat cocaine

base offenses differently than powder cocaine offenses.      See

United States v. Fonts, 95 F.3d 372, 373-375 (5th Cir. 1996);

U.S.S.G. § 2D1.1(c)(6).    Indeed, the 100-to-1 ratio is mandated

by Congress in 21 U.S.C. § 841.    See § 841(b)(1)(B).    While 18

U.S.C. § 3553(a)(6) requires district courts to consider “the

need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar

conduct,” it is evident that Congress does not believe that

offenses involving crack cocaine and those involving cocaine

powder are similar conduct.    See Fonts, 95 F.3d at 374 n.1.

There is nothing in the record, and Thomas points to nothing,

which indicates that the district court would, under an advisory

regime, reject Congress’s mandate, afford “great weight” to the

Sentencing Commission’s report regarding the differences in

sentencing of cocaine base and cocaine powder, and impose a

different sentence.   Thomas committed a serious offense for which

Congress has mandated a serious sentence, see § 841(b)(1)(B), and

the district court stated specifically that it did not see

anything that would take Thomas’s case outside of the applicable

guideline range.   At 28 years old, Thomas had a long record of

criminal behavior; his guideline range was doubled based solely

on his criminal history.   There is nothing in the record to
                           No. 03-11174
                                -4-

suggest any hesitation or discomfort on the district court’s part

in meting out the 123-month sentence.     Thomas has not

demonstrated, as required by Valenzuela-Quevedo and Mares, to a

probability sufficient to undermine confidence in the outcome

that the district court would likely have sentenced him

differently under an advisory sentencing scheme.     Thus, Thomas

has not met his burden of persuasion to show that the district

court’s imposition of the sentence was plain error.        See

Valenzuela-Quevedo, 407 F.3d at 733; Mares, 402 F.3d at 521.

     Thomas argues that his sentence is unreasonable within the

meaning of Booker because the Sentencing Commission has found

that the harsh treatment of crack cocaine offenders does not

satisfy 18 U.S.C. § 3553(a)(6)’s goal of avoiding unwarranted

sentencing disparities.   In Booker, 125 S. Ct. at 765-66, the

Supreme the Court excised 18 U.S.C. § 3742(e), which statutorily

set forth the standards of appellate review of sentences, and

stated that the remaining statute implied a reasonableness

standard of review.   Nevertheless, the Court cautioned explicitly

that it “expect[ed] reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised

below and whether it fails the ‘plain-error’ test.”     125 S. Ct.

at 769.

     We have consistently applied plain-error review, rather than

determining whether a sentence is unreasonable, where a Booker

error has not been preserved in district court.     E.g., United
                            No. 03-11174
                                 -5-

States v. Villegas, 404 F.3d 355, 358-59 (5th Cir. 2005); Mares,

402 F.3d at 520-22.   Even if we were to review for

unreasonableness, it could not be said that Thomas’s sentence was

unreasonable.   That Thomas was subjected to a longer sentence for

committing a crack cocaine offense than he would have faced for a

powder cocaine offense is neither rare nor unusual; as shown in

Fonts, this disparity in sentencing has been at issue for at

least 10 years.   The United States Congress has rejected the

Sentencing Commission’s suggestion that this disparity is

disproportionately harsh.   See Fonts, 95 F.3d at 373-75.

     Accordingly, Thomas’s sentence is AFFIRMED.
