United States v. Smith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMIE SMITH, also known as Jimmy
Smith,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-377-1
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February 6, 2002
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Jimmie Smith appeals his sentence for aiding and abetting
the possession with intent to distribute cocaine base and
conspiracy to distribute cocaine base. He contends that the
district court erred in finding that he was a leader or organizer
of a criminal activity that involved five or more participants
pursuant to U.S.S.G. § 3B1.1(a). He also contends that he should
be resentenced in light of Apprendi v. New Jersey, 530 U.S. 466(2000), and its progeny because the factors used to enhance his
*
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that this opinion should not be published and is not precedent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. 01-20410
-2-
sentence were not presented to a jury and proved beyond a
reasonable doubt.
The facts presented in the presentence report and the
testimony at the sentencing hearing support the district court’s
finding that Smith was an organizer or leader of a conspiracy to
distribute crack cocaine. See United States v. Glinsey, 209 F.3d
386, 396 (5th Cir.), cert. denied, 531 U.S. 919 (2000).
Moreover, Smith did not specifically object to the district
court's factual finding, implicit in its adoption of the
presentence report, that the activity involved five or more
participants, and his argument in this regard is therefore
reviewed for plain error. See United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994). The facts set forth in the
presentence report support the inference that at least five
people willfully participated in and were criminally responsible
for the drug activity, and thus Smith has not shown that the
district court plainly erred in finding that the criminal
activity involved five or more participants pursuant to U.S.S.G.
§ 3B1.1(a).
Smith concedes that his Apprendi argument is foreclosed by
United States v. Clinton, 256 F.3d 311 (5th Cir. 2001). He
raises the issue to preserve it for further review.
AFFIRMED.