                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      October 13, 2006

                                                                Charles R. Fulbruge III
                               No. 05-51143                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JUAN LONGORIA,

                                         Defendant-Appellant.



                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                         No. 3:04-CR-1788-ALL
                         --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Longoria was convicted by a jury of conspiracy to possess

with intent to distribute 50 kilograms or more of marihuana and

possession with intent to distribute 50 kilograms or more of mari-

huana, in violation of 21 U.S.C. §§ 841 and 846.          He was sentenced

to 55 months of imprisonment on both counts to run concurrently,

three years of supervised release, and a fine of $1,500.


     *
        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opinion should not be published and is not precedent except under the limited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.
     Longoria, proceeding pro se, argues that the district court

erred when it sentenced him under U.S.S.G. § 2D1.1.     He contends

that he was found guilty of possessing 50 kilograms or more of

marihuana and that the court erroneously set his base offense level

at 24 and that his base offense level should have been 20.       He

seeks resentencing under United States v. Booker, 543 U.S. 220

(2005), because the jury found him guilty of having only 50 kilo-

grams or more.

     Longoria’s challenge to the finding that his base offense

level was 24, and his challenge based on Booker, are raised for the

first time on appeal and so must be reviewed for plain error.   See

United States v. Vargas-Garcia, 434 F.3d 345, 347 (5th Cir. 2005),

cert. denied, 126 S. Ct. 1894 (2006).   Longoria stipulated that the

marijuana seized was 91.59 kilograms.    The district court did not

plainly err in determining that the base offense level is 24, based

on 91.59 kilograms.    See § 2D1.1(c)(8) (level 24 for 80 to 100

kilograms of marihuana).

     Longoria was sentenced after Booker was decided and under the

advisory sentencing regime.   In the wake of Booker, in determining

the guideline range, a court determines all facts relevant to sen-

tencing in the same manner as before Booker.       United States v.

Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct.

2884 (2006).   The district court was not limited to a drug quantity

determined by the jury, as Longoria suggests.   Based on Longoria’s

stipulation of 91.59 kilograms, the court did not plainly err in
basing his sentence on that amount.

     Longoria argues that the court erred in sentencing him to a

greater and a lesser included offense.    He reasons that his con-

victions under §§ 846 and 841 violate double jeopardy.   Because he

did not raise this issue in the district court, we review for plain

error. See United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.),

cert. denied, 126 S. Ct. 238 (2005).

     A substantive crime and a conspiracy to commit that crime are

not the same offense for double jeopardy purposes.   United States

v. Pena-Rodriguez, 110 F.3d 1120, 1131 n.11 (5th Cir. 1997) (citing

United States v. Felix, 503 U.S. 378, 389 (1992)).   Longoria’s ar-

gument that being charged with, convicted of, and punished for the

conspiracy and substantive counts subjected him to double jeopardy

does not establish plain error.

     Longoria contends that the district court erred in denying him

a minimal or minor role adjustment pursuant to § 3B1.2(a) or (b).

He urges that he was only a “mule” or courier of a small amount of

marihuana.   The record indicates, however, that he played an inte-

gral role in driving a tractor-trailer transporting 91.59 kilograms

of marihuana hidden in the sleeper compartment of his tractor.

Longoria had transported three previous loads.   The district court

did not clearly err in finding that he is not entitled to a down-

ward adjustment for a mitigating role in the offense.    See United

States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).

     AFFIRMED.
