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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50418

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROBERT ALAN THOMPSON,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-255-2

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Robert Alan Thompson pleaded guilty to one count of conspiring to

manufacture 50 grams or more of methamphetamine and conspiring to possess

pseudoephedrine with intent to manufacture methamphetamine. See 21 U.S.C.

§§ 841 and 846. The district court sentenced Thompson to, inter alia, 184

months’ imprisonment. Thompson appeals his sentence, claiming: the district

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2009

Charles R. Fulbruge III

Clerk
No. 09-50418

2

court erred in calculating the amount of methamphetamine for which he was

responsible, and so erred in calculating his base-offense level; and, his sentence

is greater than necessary to accomplish the 18 U.S.C. § 3553(a)(2) sentencing

objectives.

The Government contends that Thompson waived his right to appeal.

Because the magistrate judge did not discuss with Thompson the waiver

provision of his plea agreement at rearraignment, as was required by Federal

Rule of Criminal Procedure 11(b)(1)(N), and because it is unclear from the record

whether Thompson read and understood his plea agreement and had no

questions regarding the waiver provision, the waiver will not be enforced. See

United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).

Although post-Booker, the Guidelines are advisory only, and an ultimate

sentence is reviewed for reasonableness under an abuse-of-discretion standard,

the district court must still properly calculate the guideline-sentencing range for

use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51

(2007). In that respect, its application of the guidelines is reviewed de novo; its

factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,

517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359

(5th Cir. 2005). 

Regarding his contention that the district court erred in ruling that

Thompson was accountable for 180.57 grams of methamphetamine, Thompson

admitted he purchased 361.14 grams of the precursor chemical pseudoephedrine.

He maintains, however, that the district court’s application of a 50% conversion

ratio was premised on assumptions rather than on evidence. The Sentencing

Guidelines have established a 50% conversion ratio from pseudoephedrine to

methamphetamine. See U.S.S.G. §§ 2D1.1(c), 2D1.11(d); see also United States

v. Martin, 438 F.3d 621, 625, 633 (6th Cir. 2006). Accordingly, the district court

neither misapplied the Guidelines nor clearly erred in ruling that Thompson was

responsible for 180.57 grams of methamphetamine. 
No. 09-50418

3

Regarding his contention that his 184-month sentence is unreasonable,

Thompson did not object to the reasonableness of his sentence in the district

court. Therefore, review is only for plain error. See United States v. Peltier, 505

F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). For there

to be reversible plain error, the district court must have committed a clear or

obvious error that affected Thompson’s substantial rights; even then, we have

discretion whether to correct such error and, generally, will do so only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert.

denied, 129 S. Ct. 962 (2009).

The district court stated that it had taken into account the sentencing

factors in § 3553(a) in determining Thompson’s sentence. “[T]he sentencing

judge is in a superior position to find facts and judge their import under

§ 3553(a) with respect to a particular defendant”. United States v.

Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328

(2008). Thompson has not shown that the district court plainly erred in

determining that a 184-month sentence of imprisonment, which was within the

advisory guideline range, satisfied the sentencing objectives of § 3553(a).

AFFIRMED.