* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 21, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50512

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID HILL,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:04-CR-18-ALL

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

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM: *

A jury convicted David Hill on three counts of distributing of

crack cocaine and one count of distributing of crack cocaine within

1,000 feet of a school , in violation of 21 U.S.C. §§ U.S.C.

841(a)(1), (b)(1)(C) and 860. The district court sentenced Hill to

concurrent 48-month sentences and an aggregate eight-year term of

supervised release. Hill now appeals his conviction and his

sentence.No. 04-50512

-2-

Hill argues that the district court erred when it denied his

motion for a mistrial, which was made after a law enforcement

office testified that Hill had stated he was a crack cocaine user.

Spe cifically, Hill argues that the district court failed to hold

any sort of hearing on his motion. The record belies Hill’s

argument. The district court conducted a bench conference on his

m istrial motion and stated reasons for its denial. Hill has not

s hown an abuse of discretion by the district court. S ee United

States v. Layne , 43 F.3d 127, 134 (5th Cir. 1995).

Hill argues that trial counsel rendered ineffective assistance

because he failed to: (1) inform Hill that the Government had made

a plea bargain offe r prior to the commencement of the trial; (2)

assert the affirmative defe nse of entrapment and request a jury

instruction thereon; and (3) inform Hill that cooperation with the

Government was necessary to the success of a request for a downward

departure at sentencing. Because these claims of ineffective

assistance of counsel were not raised in the district court, the

record is insuf ficiently developed to consider the merits of the

claims on appeal. S ee United States v. Miller

, 406 F.3d 323, 335-

36 (5th Cir. 2005).

Hill argues that there was sufficient evidence of entrapment

that the district court erred in denying his motions for acquittal

or, alternatively, that the Government failed to meet its burden of

showing that he was predisposed, able, and likely to commit the

instant offenses. The affirmative defense of entrapment was notNo. 04-50512

-3-

asserted by trial counsel either in his motion for acquittal at the

close of the Government’s case or in his motion for acquittal at

the close of all the evidence. Consequently, the district court

did not instruct the jury on entrapment, and the burden of proof

with respect to an entrapment claim never shifted to the

Government. S ee United States v. Thompson

, 130 F.3d 676, 689 (5th

Cir. 1997).

Finally, Hill argues that his sentence is unconstitutional in

light of the Supreme Court’s recent decision in United States v.

Booker

, 125 S. Ct. 738 (2005). Hill did not raise this argument in

the district court, and it is reviewed only for plain error.

United States v. Mares

, 402 F.3d 511, 513, 520-22 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517). The

district court committed plain or obvious error when it engaged in

judicial factfinding that increased Hill’s sentenc e beyond that

authorized by the jury’s verdic t. The district court also

committed plain or obvious error when it sentenced Hill under a

mandatory sentencing scheme. S ee United States v. ValenzuelaQuevedo

,

___ F.3d

___, No. 03-41754, 2005 WL 941353 at *4 (5th Cir.

Apr. 25, 2005). Such errors are not reversible, however, because

the district court did not give any clue that it would have imposed

a different sentence under an advisory sentencing scheme. S ee id. ;

Mares , 402 F.3d at 520-22.

AFFIRMED.