United States v. Percopo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30651
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER J. PERCOPO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 93-CR-354-1-G
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May 6, 1998
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Peter J. Percopo appeals the district court’s sentencing
following his conviction for mail fraud. He argues that
(1) the Sentencing Commission exceeded its Congressional mandate
when it determined that an insurance company was a “financial
institution” for purposes of U.S.S.G. § 2F1.1(b)(6)(A);
(2) the district court abused it discretion in failing to
continue sentencing for a fifth time; and (3) there was an
“improper joinder” of two unrelated convictions into one
*
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that this opinion should not be published and is not precedent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. 97-30651
-2-
presentence report. We review Percopo’s contentions for plain
error.**
Under Fed. R. Crim. P. 52(b), this court may correct
forfeited errors only when the appellant shows the following
factors: (1) there is an error, (2) that is clear or obvious, and
(3) that affects his substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 730-36 (1993)). If these
factors are established, the decision to correct the forfeited
error is within the sound discretion of the court, and the court
will not exercise that discretion unless the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 736.
None of Percopo’s contentions amounts to error that is
“plain” or “obvious.” See Calverley, 37 F.3d at 162-64.
Further, because he was given a substantial downward departure,
Percopo cannot demonstrate that his substantial rights were
affected by any such error. Id.
AFFIRMED.
**
Percopo failed to preserve for appeal his first and third
contentions. Percopo’s failure to inform the court of the reason
he sought a fifth continuance amounts to invited error. If an
issue is barred by the invited error doctrine, this court’s
review is limited to plain error. United States v. Harrington,
82 F.3d 83, 90 (5th Cir. 1996).