USA v. Baker

Filing 920061206

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 6, 2006 Charles R. Fulbruge III Clerk No. 05-50321 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN SCOTT BAKER, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 6:04-CR-48-1 -------------------Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Kevin Scott Baker appeals the sentence imposed following his jury conviction for distribution of marijuana. following: He argues the

(1) the district court's non-Guideline sentence was

plainly erroneous; (2) the charged conduct on which the jury could not reach a verdict should not have been used to determine his sentence; (3) the district court clearly erred in awarding a two-level enhancement pursuant to U.S.S.G. § 3B1.3 for abuse of position of trust; and (4) the district court clearly erred in

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50321 -2awarding a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. We affirm.

Baker did not object to the district court's upward deviation, and, therefore, review is for plain error only. United States v. Jones, 444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006). Baker cannot show plain error See

with regard to the district court's finding that he committed the charged offenses on which the jury could not reach a verdict because "questions of fact capable of resolution by the district court can never constitute plain error." See United States v.

Chung, 261 F.3d 536, 539 (5th Cir. 2001) (internal quotations and citation omitted). Furthermore, the jury's inability to reach a verdict on counts two and three of the indictment did not prevent the district court from sentencing Baker based on the charged conduct. See United States v. Cathey, 259 F.3d 365, 369 (5th Therefore, the district court did not give

Cir. 2001).

significant weight to an improper factor when upwardly deviating, and its reasons for the deviation were not inconsistent with 18 U.S.C. § 3553(a)(2)(A), (B). F.3d 704, 708 (5th Cir. 2006). See United States v. Smith, 440 Consequently, Baker has shown no

error on the part of the district court. Baker's suggestion that the district court failed to give adequate reasons for its deviation is inadequately briefed and is therefore waived. See United States v. Thames, 214 F.3d 608, 611

No. 05-50321 -3n.3 (5th Cir. 2000). Baker's argument that the charged conduct

on which the jury could not reach a verdict should not have been used to determine his sentence is foreclosed by Cathey, 259 F.3d at 369. We hold that Baker's use of a patrol car, or police-type vehicle, to distribute the marijuana was sufficient to support the district court's § 3B1.3 enhancement. Deville, 278 F.3d 500, 508 (5th Cir. 2002). See United States v. We further hold that

the record supports the district court's finding that Baker perjured himself on the witness stand, thereby warranting a § 3C1.1 enhancement. See § 3C1.1 & comment. (n.4(b)); United The enhancements

States v. Dunnigan, 507 U.S. 87, 94 (1993). were therefore not clearly erroneous.

See United States v.

Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005). AFFIRMED.