United States v. Mei

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20984
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MEI, SR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-544-3
--------------------
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Frank Mei, Sr., pleaded guilty to a bill of information
charging him with misprision of the felonies of mail fraud,
conducting monetary transactions with criminally derived
property, and conspiracy to commit those crimes. The 14-month
prison sentence imposed by the district court constituted an
upward departure which forms the basis for this 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that this opinion should not be published and is not precedent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. 02-20984
-2-
Mei argues that he did not receive proper notice of the
basis of the district court’s intention to depart upward from the
guideline sentencing range. This issue is reviewed only for
plain error because it was not raised in the district court.
See United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998).
The reasons given for upward departure at oral pronouncement and
those given in the written reasons for judgment both relate to
the bases for upward departure listed in the presentence report.
Therefore, Mei has not shown plain error with respect to this
issue. See United States v. Davenport, 286 F.3d 217, 219 (5th
Cir. 2002); United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.
2000).
Mei’s other two issues are also reviewed for plain error as
they were not raised in the district court. Mei argues that the
district court improperly departed upward from the guideline
applicable to the offense of misprision without making a specific
finding that Mei was guilty of the underlying felony. The
district court made findings that Mei took part in the underlying
fraudulent activity and found that he was no less culpable than
the least culpable of his co-defendants who were convicted of the
underlying felony offense. Mei’s reliance on United States v.
Warters, 885 F.2d 1266 (5th Cir. 1989), is misplaced. The
district court in this case made the findings found wanting in
Warters. Mei thus has not shown plain error. See Vasquez, 216
F.3d at 459.
No. 02-20984
-3-
Mei also argues that the upward departure in this case was
improper because the full extent of his conduct surrounding the
underlying felonious activity was taken into account by the
guideline provisions for misprision of a felony. Mei has not
shown error, plain or otherwise, with respect to this issue.
See Vasquez, 216 F.3d at 459; Warters, 885 F.2d at 1275.
AFFIRMED.