United States v. O'Neal ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30864
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
L.S. POUNCY,
Defendant-Appellant.
No. 00-30958
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLYDE O’NEAL, III,
Defendant-Appellant.
No. 00-31146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY LEE DEBOSE,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 99-CR-50082-3
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November 19, 2001
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Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
L.S. Pouncy and Clyde O’Neal appeal the sentences following
their guilty plea convictions. Pouncy pleaded guilty to
conspiracy to possess with intent to distribute 50 or more grams
of cocaine base. O’Neal pleaded guilty to conspiracy to possess
with intent to distribute 500 or more grams of cocaine. Both
Pouncy and O’Neal assented to a forfeiture-of-property count
under 21 U.S.C. § 853. Roy Lee Debose was convicted by a jury of
two conspiracy counts, one to possess with intent to distribute
500 or more grams of cocaine and one to possess with intent to
distribute 50 or more grams of cocaine base.
Pouncy argues that $100 special assessment should not have
been imposed for his forfeiture count. However, Pouncy did not
raise this objection in the district court, and he has not shown
that the imposition of the special assessment was plain error.
See United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th
Cir. 1998); Fed. R. Crim. P. 52(b). His sentence is AFFIRMED.
O’Neal argues that the district court should have credited
his offense level by two because O’Neal was a minor participant
in the offense. Our review of the presentence report and
sentencing record reveals that the district court did not clearly
err by not sustaining O’Neal’s role-in-the-offense objection.
*
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that this opinion should not be published and is not precedent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.
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See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994).
O’Neal was also imposed a $100 special assessment for his
forfeiture count; however, like Pouncy, he does not show that the
special assessment was plain error. O’Neal’s sentence is
AFFIRMED.
Debose argues that there was insufficient evidence to
support his conviction for either of his conspiracy counts, that
there was a material variance between the trial evidence and the
conspiracy allegations in the indictment, that the district court
should have sentenced Debose within the Sentencing Guidelines
range for count two because he satisfied the requirements of the
safety-valve provision, that he should have been assessed only
one criminal history point, and that he should have received a
minimal-role-in-the-offense adjustment to his offense level.
Our review of the trial evidence reveals that Debose was
aware of the conspiracy and that he took actions to participate
in the conspiracy. See United States v. Puig-Infante, 19 F.3d
929, 936 (5th Cir. 1994); United States v. Morris, 46 F.3d 410,
416 (5th Cir. 1995). The evidence at trial did not prove that
Debose was involved in a conspiracy different than the one
alleged in the indictment; nor were Debose’s substantial rights
affected. See United States v. Morgan, 117 F.3d 849, 858 (5th
Cir. 1997); United States v. Mikolajczyk, 137 F.3d 237, 243 (5th
Cir. 1998). The calculation of his criminal history category was
correct, Debose did not meet the requirements of 18 U.S.C.
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§ 3553(f), and he was not entitled to be sentenced under the
safety-valve provision. See United States v. Flanagan, 80 F.3d
143, 146 (5th Cir. 1996). The district court’s refusal to credit
Debose’s offense level for a role-in-the-offense adjustment was
not clear error. See Zuniga, 18 F.3d 1254, 1261.
Debose’s conviction and sentence are AFFIRMED. Pouncy’s and
O’Neal’s sentences are AFFIRMED.