* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10609

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEREMEY LAVRAY WHATLEY,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-180-1

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Jeremy Lavray Whatley appeals his guilty-plea conviction

of possession with intent to distribute more than fifty grams

of a substance containing crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and his resulting 150-

month sentence. He argues that the district court failed to

sufficiently state its reasons for his sentence, as required
No. 05-10609

-2-

by 18 U.S.C. § 3553(c). He also contends that his Sixth

Amendment rights were violated by the district court’s

application of a two-level offense level increase pursuant to

U.S.S.G. § 2D1.1(b)(1) based upon a finding that he possessed

a firearm in connection with a drug-trafficking offense.

Finally, he argues that his trial counsel’s failure to inform

him of prior conflicts with the district court violated his

Sixth Amendment right to counsel.

Whatley did not present the arguments that he makes to

this court to the district court. His arguments are therefore

subject to plain error review. United States v. Mares, 402

F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Because Whatley’s sentence of 150 months of imprisonment

fell within the guidelines range of imprisonment, and it

exceeded 24 months of imprisonment, the district court was

required to state in open court the reasons for its imposition

of the particular sentence and the reason for imposing a

sentence at a particular point within the range. 18 U.S.C.

§ 3553(c)(1). At the sentencing hearing the district court

explicitly adopted the fact findings and conclusions set forth

in the PSR. After hearing from Whatley, his family members,

and defense counsel, and considering letters submitted on

Whatley’s behalf, the district court stated that persuasive
No. 05-10609

-3-

arguments had been presented, and that Whatley’s case warranted

a sentence in the middle of the guidelines range. The district

court also stated that a sentence in the middle of the

guidelines range took into account the factors of § 3553(a).

Therefore, the district court complied with § 3553(c)(1) by

stating the reasons for its imposition of the particular

sentence and the reason for imposing a sentence at a particular

point within the range.

Although Whatley contends that the district court’s

application of a two-level offense level increase pursuant to

§ 2D1.1(b)(1) violated his Sixth Amendment rights, he does not

challenge the factual basis for the adjustment. Additionally,

Whatley was sentenced in May 2005, after United States v.

Booker, 543 U.S. 220 (2005), was issued. As the district court

observed, Whatley was sentenced pursuant to the post-Booker,

advisory guidelines scheme. “Booker contemplates that, with

the mandatory use of the Guidelines excised, the Sixth

Amendment will not impede a sentencing judge from finding all

facts relevant to sentencing.” Mares, 402 F.3d at 519. It is

a direct contradiction of Mares to contend, as Whatley does,

that Booker prohibits a judge from finding facts used to

enhance a sentence. See United States v. Alonzo, 435 F.3d

551, 553 (5th Cir. 2006). Moreover, facts relevant to
No. 05-10609

-4-

sentencing include relevant conduct under § 1B1.3, id., which

includes the § 2D1.1(b)(1) weapons adjustment. See § 1B1.3(a).

The district court therefore did not commit error, plain or

otherwise, when it imposed a sentence within a properly

calculated guidelines range based upon, inter alia, the

district court’s factual determination that Whatley possessed

a weapon in connection with his drug-trafficking offense. See

Alonzo, 435 F.3d at 553.

Finally, regarding Whatley’s argument that his attorney

failed to provide conflict-free representation, to establish

a Sixth Amendment violation, Whatley, who raised no objection

based on this issue in the district court, must show that an

actual conflict of interest existed that affected his

attorney’s performance. See United States v. Lyons, 703 F.2d

815, 820 (5th Cir. 1983). Whatley fails to argue in a clear

fashion that an actual conflict existed and that the conflict

adversely affected his lawyer’s performance. See United States

v. Carr, 740 F.2d 339, 348 (5th Cir. 1984). His speculative

claim is insufficient to warrant relief. See Lyons, 703 F.2d

at 821.

The district court’s judgment is AFFIRMED.