IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30009

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RANDY WAYNE WILSON,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:10-CR-261-2

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Randy Wayne Wilson pled guilty to possession with intent to distribute 

five grams or more of a mixture of substance containing cocaine base in 

violation of the Controlled Substances Act, 21 U.S.C. § 841(a)(1). During his 

sentencing hearing, Wilson admitted to possession of approximately 42 grams 

of crack cocaine. In light of Wilson’s prior felony drug conviction, the district 

court sentenced him to 120 months in prison pursuant to the statutory 

* 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

November 3, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-30009 Document: 00512823253 Page: 1 Date Filed: 11/03/2014
No. 14-30009

minimum then in effect. See Anti-Drug Abuse Act, Pub. L. No. 99-570, 100

Stat. 3207 (1986). The Fair Sentencing Act, effective on August 3, 2010, raised 

the threshold for violation of this Act to 28 grams. Pub. L. 111-220 § 2(a)(2), 

124 Stat 2372. At the time of Wilson’s initial sentencing, this Circuit did not 

apply the FSA to conduct committed before the new law became effective. See 

United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).

In Dorsey v. United States, the Supreme Court held categorically that 

the FSA applied to all sentences imposed after the law’s passage, regardless of 

when the charged conduct occurred. 132 S. Ct. 2321, 2336 (2012). Wilson 

accordingly filed a motion for resentencing pursuant to 28 U.S.C. § 2255. The 

Government agreed that he was entitled to a new hearing but argued that he 

should receive the same sentence, a request the district court eventually 

granted. Wilson now appeals the imposition of that sentence, arguing that the 

Government was required to indict and prove beyond a reasonable doubt the

facts determining his sentence. Apprendi v. New Jersey, 530 U.S. 466); see also 

Alleyne v. United States, 133 S. Ct. 2151 (2013).

Wilson, however, failed to raise any objection to his sentence on this basis 

in the trial court. His pre-sentencing memorandum makes no argument on 

this point other than stating that, “Based on a change in the law, [defendant] 

is no longer subject to a statutory minimum sentence.” At his sentencing 

hearing, Wilson’s attorney argued only that Wilson should receive the benefit 

of Dorsey or the increase in the drug calculation tables. Immediately after he 

imposed the sentence, the district judge asked defense counsel if he had 

anything further. Counsel stated “Everything was set forth in my sentencing 

memorandum.” 

Because Wilson did not preserve his objection, we review it for plain error

under Rule 52(b). United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). 

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No. 14-30009

We will exercise our discretion to correct an unpreserved plain error only “if 

the error ‘seriously affect[s] the fairness, integrity, or public reputation of 

judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135, 

129 S. Ct. 1423, 1429 (2009) (quoting United States v. Olano, 507 U.S. 725, 736, 

113 S. Ct. 1770, 1779 (1993)) (alteration in original). If the error complained 

of presents a “tiny risk” that the sentence would have been different, reversal 

“is most unlikely.” United States v. Marcus, 560 U.S. 258, 267, 130 S. Ct. 2159, 

2167 (2010) (internal quotation marks omitted). 

Here, the defendant admitted possession of a quantity of crack sufficient 

to sustain the sentence. Forty-two grams of crack, taken together with an 

enhancement for his prior conviction, well exceeds the revised standard for a 

10-year minimum sentence. Thus, any error could not have affected Wilson’s 

substantial rights. Further, in the words of a unanimous Court, “The real 

threat then to the “fairness, integrity, and public reputation of judicial 

proceedings” would be if respondents, despite the overwhelming and 

uncontroverted evidence that they were [guilty], were to receive a sentence 

prescribed for those committing less substantial drug offenses because of an 

error that was never objected to at trial.” United States v. Cotton, 535 U.S. 

625, 634, 122 S. Ct. 1781, 1787 (2002); see also Johnson v. United States, 

520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (conducting a similar ‘causal’ 

plain-error analysis).

In the absence of plain error that mandates reversal, we AFFIRM the 

sentence.

AFFIRMED.

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 Case: 14-30009 Document: 00512823253 Page: 3 Date Filed: 11/03/2014