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this opinion should not be published and is not precedent except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

June 29, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-51380

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT EDWARD BELL,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:03-CR-254-2

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

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Robert Edward Bell was sentenced to a 240-month term of

imprisonment and a three-year term of supervised release for

conspiracy to manufacture methamphetamine. Bell’s sentence was

vacated on appeal and the matter remanded for resentencing. See

United States v. Bell, 148 F. App’x 194, 195 (5th Cir. 2005). On

remand, the district court again imposed a 240-month term of

imprisonment. Bell now appeals, challenging his sentence. 
No. 05-51380

-2-

Bell argues that his sentence is unreasonable because the

district court erred in determining the drug quantity

attributable to him for sentencing. He argues that the court

relied on the unsubstantiated and uncorroborated hearsay of an

informant. Under the advisory Sentencing Guidelines scheme

mandated by United States v. Booker, 543 U.S. 220 (2005), the

district court was entitled to find the facts to support the

sentence in the same manner as before Booker. See United States

v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006). “‘The

sentencing judge is entitled to find by a preponderance of the

evidence all the facts relevant to the determination of a

Guideline sentencing range and all facts relevant to the

determination of a non-Guidelines sentence.’” United States v.

Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (quoting United States

v. Mares, 402 F.3d 511, 519 (5th Cir.) (internal citations

omitted), cert. denied, 126 S. Ct. 43 (2005)). Because the

district court’s drug quantity determination was plausible in the

light of the record as a whole, Bell has not demonstrated clear

error. See United States v. Caldwell, __F.3d__, No. 05-30263,

2006 WL 1075594, *1 (5th Cir. Apr. 25, 2006). 

Bell challenges his sentence as unreasonable on grounds of

vindictiveness, arguing that it is harsher than the alternative

five-year sentence the district court imposed at his original

sentencing hearing and further arguing that the district court

did not sufficiently justify its decision not to impose the
No. 05-51380

-3-

alternative five-year sentence. On resentencing, a sentencing

court may not impose a sentence that is harsher than the original

sentence unless the record shows that the harshness was not

motivated by vindictiveness. United States v. Reinhart, 442 F.3d

857, 859-60 (5th Cir. 2006); United States v. Vontsteen, 950 F.2d

1086, 1088-89 & n.2 (5th Cir. 1992) (en banc); North Carolina v.

Pearce, 395 U.S. 711, 726 (1969). Because Bell did not object in

the district court to his sentence on grounds of vindictiveness,

review is for plain error. See Vontsteen, 950 F.2d at 1089-93. 

This court has held that insofar as the district court had

predicated an alternative sentence on the unconstitutionality of

the Guidelines “in their entirety,” Booker had not triggered such

a scenario because rather than striking down the Guidelines in

toto, it declared them advisory only. United States v. Adair,

436 F.3d 520, 527-28 (5th Cir.), cert. denied, 2006 WL 1035494

(U.S. May 22, 2006) (No. 05-10430); see also United States v.

Walters, 418 F.3d 461, 465-66 (5th Cir. 2005). Bell’s argument

that his 240-month sentence is harsher than his first sentence

because it is harsher than the alternative five-year sentence--a

sentence that was not triggered by Booker--is unconvincing. 

Because Bell has not shown that he received a harsher sentence

upon resentencing, he has not shown error, plain or otherwise. 

Bell has failed to show that his 240-month sentence was

unreasonable. See Alonzo, 435 F.3d at 554; Mares, 402 F.3d at

519. 

AFFIRMED.