* 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this opinion should not be published and is not precedent except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 26, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50010

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO LARICO SMITH,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:05-CR-32

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

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Antonio Larico Smith appeals the sentence imposed following

his jury-trial conviction for possession with intent to

distribute five grams or more of cocaine base. Smith argues that

the district court clearly erred by applying a two-level

enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for his possessing

a dangerous weapon during the commission of his offense. The

evidence at sentencing showed that a police officer saw Smith in

possession of a gun at the motel where he later was found in

possession of cocaine base and distributing cocaine base. There
No. 06-50010

-2-

was also evidence that Smith had sold cocaine on the night that

he was seen with the gun and that he had previously been seen

with a gun while conducting drug trafficking activity. The

Government established that a temporal and spatial relation

existed between the gun, the drug trafficking activity, and

Smith, and Smith did not show that it was clearly improbable that

the gun was not possessed in connection with his drug

trafficking. See United States v. Eastland, 989 F.2d 760, 770

(5th Cir. 1993). The district court did not clearly err by

applying the enhancement. See id.

Smith argues that his sentence was unreasonable because it

was greatly enhanced by relevant conduct found by the district

court by a preponderance of the evidence and supported by

unreliable testimony. In connection with this argument, he

asserts, for the first time on appeal, that the relevant conduct

so greatly increased the drug quantity for which he was held

responsible that it constituted a situation where the relevant

conduct was the tail that wagged the dog of the substantive

offense, and the district court should have required clear and

convincing evidence to support the relevant conduct. Because

Smith did not raise this argument below, we review for plain

error. See United States v. Alvarado-Santilano, 434 F.3d 794,

795 (5th Cir. 2005). No precedent would support this contention.

As the sentenced imposed was within the properly calculated

guidelines range, it was presumptively reasonable. See United
No. 06-50010

-3-

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). To the

extent that Smith argues that United States v. Booker, 543 U.S.

220 (2005), requires a greater burden of proof at sentencing than

before, he is incorrect. See United States v. Mares, 402 F.3d

511, 519 (5th Cir.) (citing Booker, 543 U.S. at 233, 259-60),

cert. denied, 126 S. Ct. 43 (2005). Smith has not rebutted the

presumption of reasonableness, and, therefore, not shown that his

sentence was unreasonable. See Alonzo, 435 F.3d at 554.

AFFIRMED.