United States v. Mercedes ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20588
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENCIO MERCEDES, also known as Francisco,
also known as Frank,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-875-7
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April 29, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Florencio Mercedes pleaded guilty to count four of an
indictment charging him with possession with intent to distribute
500 grams or more of cocaine and aiding and abetting and has
appealed his sentence. Mercedes contends that the district court
erred in departing upward to Criminal History Category II in
determining his sentence. Mercedes also contends that the
district court should have adjusted his offense level under
*
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this opinion should not be published and is not precedent except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. 01-20588
-2-
U.S.S.G. § 2D1.1(b)(6) (Safety Valve). Because Mercedes
forfeited these issues in the district court, we review for plain
error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc).
The district court did not err in considering Mercedes’
prior uncounted drug and firearms convictions in determining
whether Mercedes’ criminal history category did not reflect
adequately the seriousness of Mercedes’ criminal history or
propensity for recidivism. See United States v. Alford, 142 F.3d
825, 831 (5th Cir. 1998). Any error in applying the Safety Valve
provision was neither clear nor obvious. See Calverley, 37 F.3d
at 162-63.
The judgment is AFFIRMED.