United States v. Jones ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50143
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC RASHAD JONES, also known as Eric Jones,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CR-82-2
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September 21, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Eric Rashad Jones appeals his sentence following his
convictions for conspiring from August 1, 1999, to August 11,
1999, to possess with the intent to distribute cocaine base and
for aiding and abetting his coconspirator’s August 11, 1999,
possession with the intent to distribute cocaine base. Jones
asserts that the district court erred in attributing 439.32 grams
of cocaine base to him for sentencing purposes and in assigning a
criminal history point for his prior conviction for possession of
drug paraphernalia.
*
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that this opinion should not be published and is not precedent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.
No. 00-50143
-2-
Specifically, Jones argues: that the 119.32 grams of
cocaine base and the cash equivalent of 32 grams of cocaine base
seized on March 28, 1999, were not relevant to his August 1999
conspiracy because they were not possessed during the course of
the conspiracy and their possession was not foreseeable to the
conspirators; that the cash equivalent of 118 grams of cocaine
base seized on August 11, 1999, was not relevant to Jones’
convictions, as the presentence report (“PSR”) found that the
cash was owed to a different drug supplier for powder cocaine;
and that Jones should not have been attributed the 170 grams of
cocaine base he allegedly provided to his coconspirator in 1999
because his coconspirator’s statements were uncorroborated.
The district court did not clearly err in adopting the PSR’s
findings, which establish that the disputed quantities of cocaine
base and cash were the result of drug activity that occurred
regularly, was similar to, and was close in time to the drug
activity for which Jones was convicted. See United States v.
Bryant, 991 F.2d 177, 177 (5th Cir. 1993); United States v.
Vital, 68 F.3d 114, 120 (5th Cir. 1995). Thus, these quantities
of cocaine base and cash resulted from relevant conduct and were
properly attributed to Jones for sentencing purposes. See
U.S.S.G. § 1B1.3(a)(2); United States v. Bethley, 973 F.2d 396,
401 (5th Cir. 1992); United States v. McCaskey, 9 F.3d 368, 375
(5th Cir. 1993).
Jones’ remaining drug-quantity arguments were not urged in
the district court and are therefore reviewed for plain error.
See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995).
No. 00-50143
-3-
Under plain-error review, this court may address an issue only
if: (1) there was an error, (2) the error was clear or obvious,
and (3) the error affected the defendant’s substantial rights.
See United States v. Harris, 104 F.3d 1465, 1472 (5th Cir. 1997).
Because the forfeited arguments all raise questions of fact that
the district court could have resolved at sentencing, the
asserted errors are not plain and are not be reviewed by this
court. See Vital, 68 F.3d at 119.
Jones finally contends that he should not have been assigned
a criminal history point for his prior offense of possession of
drug paraphernalia. Assuming arguendo that the district court
erred in assigning a criminal history point for this prior
conviction, the error is harmless. Even if the point were
subtracted from Jones’ criminal history score of three, his
criminal history category, and thus his guideline sentencing
range, would remain unchanged. See Ch.5, Pt. A; see also Bryant,
991 F.2d at 178 n.9.
The judgment of the district court is AFFIRMED.