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

                                                                    FILED
                                                                 December 18, 2008
                                No. 08-50054
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

RAVIS DONNELL KENNEDY

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:07-CR-126-2


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Ravis Donnell Kennedy appeals from the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute cocaine
and crack cocaine and possession with intent to distribute crack cocaine.
Kennedy argues on appeal that the district court erred by converting 80.28
grams of powder cocaine found in his codefendant’s residence into an equivalent
amount of crack cocaine when determining his sentence.



      *
      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should not be published and is not precedent except under the limited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. 08-50054

         This court reviews the sentencing court’s findings of fact for clear error
and its application of the Sentencing Guidelines de novo. United States v.
Burns, 526 F.3d 852, 859 (5th Cir. 2008). Based upon the evidence regarding
Kennedy and his codefendant’s crack cocaine dealings, it was foreseeable to
Kennedy that the powder cocaine located in the codefendant’s residence would
be converted into crack cocaine. See United States v. Booker, 334 F.3d 406, 414
(5th Cir. 2003). The district court therefore did not clearly err by converting the
80.28 grams of powder cocaine into an equivalent amount of crack cocaine for
sentencing purposes. See Burns, 526 F.3d at 859. Moreover, to the extent that
Kennedy relies upon Kimbrough v. United States, 128 S. Ct. 558 (2007), his
argument lacks merit because the crack/powder disparity discussed in
Kimbrough does not prohibit a district court from converting powder cocaine into
crack cocaine for sentencing purposes when it is otherwise appropriate for it to
do so.
         The district court’s judgment is AFFIRMED.




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