United States v. Mejia ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-50097 & 01-50098
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MEJIA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-00-CR-228-1-HG)
_________________________________________________________________
October 29, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The issues raised by appellant Mejia, who pleaded guilty
to drug offenses, are the validity of the waiver of appeal in his
plea agreement and the application of the career-offender provision
of the sentencing guidelines. U.S.S.G. § 4A1.2, comment (n.3).
Finding no error by the district court, we affirm.
*
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this opinion should not be published and is not precedent except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.
First, this case is virtually indistinguishable from
United States v. Robinson, 187 F.3d 516 (5th Cir. 1999), in regard
to the validity of Mejia’s waiver of appeal. As a result, the
waiver will not be enforced.
Second, although Mejia asserts that his two prior
convictions for delivery of cocaine to an undercover officer were
part of a “common scheme or plan”, and thus related offenses that
could not be separated for purposes of determining career offender
status, we find the district court’s contrary conclusion more in
accord with Fifth Circuit precedent. In two previous cases, this
court held that multiple drug sales, spread over periods ranging
from a few hours to nine days, some involving the same undercover
law officers, were nevertheless not part of a “common scheme or
plan” under § 4A1.2. See United States v. Garcia, 962 F.2d 479,
481-82 (5th Cir. 1992). United States v. Ford, 996 F.2d 83, 85-86
(5th Cir. 1993). As the court noted in Ford, where each sale was
separated by hours, if not days, “The fact that the buyer was the
same did not make the sales ‘related’ any more than if Ford made
four separate trips to the same H.E.B. in one week to buy
groceries. . .” Id. at 86.
Our decision in Robinson, supra, on which Mejia relies,
held that two drug sales were part of a common scheme or plan where
the defendant “planned” the commission of the second sale while
committing the first crime, the second offense was “not a spur of
the moment occurrence,” and the second offense “necessarily
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entailed the commission of the first offense”. Robinson carefully
distinguishes Garcia and Ford. Here, no such distinction is
possible. There is no evidence that Mejia gave his phone number to
the agent during the first sale in order to set up a later sale.
Instead, Mejia was hoping to be called for legitimate landscaping
employment. And the second sale was accomplished in a different
manner than the first. Were we to accept Mejia’s argument,
Robinson would virtually and impermissibly overrule Garcia and
Ford. But as Ford says, “there was no common scheme or plan --
simply convenience and experience.” 996 F.2d at 82.
The sentence imposed by the district court is AFFIRMED.
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