United States v. Starks

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60830
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE LEE STARKS, also known as “Cat Daddy”,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:98-CR-92-1-S-B
--------------------
April 27, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Willie Lee Starks appeals from his conviction by guilty plea
of conspiring to extort payoffs under color of official right and
attempting to commit extortion under color of official right. He
suggests that his sentence violated Apprendi v. New Jersey, 120
S. Ct. 2348 (2000), but he did not adequately argue any Apprendi
issue for appeal. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). We address in turn the
arguments that Starks does brief for appeal.
*
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that this opinion should not be published and is not precedent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. 99-60830
-2-
Starks contends that the district court erred by attributing
22.5 kilograms of crack cocaine to him. He argues that the
district court should have applied a heightened evidentiary
standard in his case because the cross-reference to the drug-
trafficking guideline dramatically increased his punishment. He
further argues that the evidence was insufficient under a
heightened evidentiary standard to support the attribution of the
crack cocaine.
The record does not demonstrate that Starks raised his
contention regarding the evidentiary standard in the district
court. Nor did he challenge the attribution of 22.5 kilograms of
crack cocaine. Our review of Starks’s contentions regarding the
evidentiary standard and the attribution of cocaine therefore is
under the plain-error standard. United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994)(en banc).
“Questions of fact capable of resolution by the district
court upon proper objection at sentencing can never constitute
plain error.” United States v. Vital, 68 F.3d 114, 119 (5th Cir.
1995)(internal punctuation marks and citations omitted). The
amount of drugs attributed to Starks is a factual issue that
could have been resolved upon proper objection at sentencing.
See United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993).
Because the attribution of crack cocaine to Starks cannot
constitute plain error, the evidentiary standard that should have
been applied by the district court is a nonissue. We do not
address Starks’s evidentiary-standard contention.
No. 99-60830
-3-
Starks contends that the district court erred by adjusting
his offense level for his role as a leader/organizer. The
leader/organizer finding in Starks’s case was not clearly
erroneous. United States v. Watson, 988 F.2d 544, 550 (5th Cir.
1993).
Starks contends that the district court erred by denying his
request for a downward departure from the guideline sentencing
range. We lack jurisdiction to consider Starks’s contention.
United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).
AFFIRMED.