USA v. Darlene Poole


UNPUBLISHED OPINION FILED. [10-20050 Affirmed ] Judge: WG Mandate pull date is 01/12/2011 for Appellant Darlene McGruder Poole [10-20050]

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USA v. Darlene Poole ase: 10-20050 C Document: 00511330069 Page: 1 Date Filed: 12/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-20050 S u m m a r y Calendar December 22, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A R L E N E MCGRUDER POOLE, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-471-1 B e fo r e GARWOOD, PRADO and HAYNES, Circuit Judges. P E R CURIAM:* D a r le n e McGruder Poole appeals her January 2010 nine-month sentence, w h ic h the district court imposed after she pleaded guilty to one count of c o n s p ir a c y to commit mail and wire fraud. The presentence report (PSR) a s s ig n e d Poole a single criminal history point pursuant to U.S.S.G. 4A1.1(c) for h e r January 4, 2008 sentence to two years of deferred adjudication probation in T e x a s for theft of $1,500 to $20,000 of property. The PSR added two criminal h is t o r y points pursuant to 4A1.1(d) because Poole was on probation for the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-20050 Document: 00511330069 Page: 2 Date Filed: 12/22/2010 No. 10-20050 s a m e theft offense at the time that she committed the instant offense of c o n s p ir a c y . With a total offense level of nine and a criminal history category of I I , her guideline range of imprisonment was six to 12 months. See U.S.S.G. C h .5 , Pt.A (sentencing table). P o o le argues that the application of the advisory Sentencing Guidelines in her case violated the Due Process Clause of the Fifth Amendment because the G u id e lin e s "double counted" her only prior criminal conviction by assessing one c r im in a l history point for the prior offense and two additional points because she c o m m it t e d the instant offense while serving probation for the prior offense. 1 P la in error review applies because Poole failed to present her Fifth Amendment a r g u m e n t to the district court. United States v. Martinez, 496 F.3d 387, 389 (5th C ir . 2007); see also Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (plain e r r o r standard). We have repeatedly held that the advisory guideline system c o m p o r t s with the Fifth Amendment's Due Process Clause. See United States v . Austin, 432 F.3d 598, 599-600 (5th Cir. 2005); United States v. Scroggins, 411 F .3 d 572, 576-77 (5th Cir. 2005). Poole's only argument on appeal is therefore fo r e c lo s e d . A F F IR M E D . Had Poole's prior conviction not been "double counted" as she complains of, she contends that her advisory guidelines range would have been four to 10 months, instead of six to 12 months. Thus, her nine month sentence falls within what she contends is the correct advisory guideline range. See United States v. Jasso, 587 F.3d 706, 713-14 (5th Cir. 2009). 1 2

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