United States v. Bingham

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-61057 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRAD BINGHAM,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:03-CR-31-ALL --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Brad Bingham pleaded guilty to two counts of distribution

in excess of 50 grams of methamphetamine. The district court

sentenced Bingham to concurrent terms of 97 months in prison

for each of the two counts of conviction. The district court

also imposed concurrent five-year terms of supervised release.

Bingham, proceeding pro se, appeals his sentence.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-61057 -2-

Bingham argues that the district court erred in considering

the amounts of narcotics listed in the dismissed counts of the

indictment as relevant conduct to his methamphetamine trafficking

offenses. The district court may consider drug offenses not

specified in the count of conviction if they are part of the

same course of conduct or part of a common scheme or plan.

United States v. Vital, 68 F.3d 114, 118 (5th Cir. 1995);

U.S.S.G. §§ 1B1.3(a)(2), 2D1.1, comment. (n.12). Because all of

the narcotics trafficking occurred within a six week period,

Bingham has not demonstrated that the district court clearly

erred in including all of the dismissed counts as relevant

conduct. United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir.

2000); United States v. McCaskey, 9 F.3d 368, 372 (5th Cir.

1993).

Bingham argues that a single criminal history point should

be deleted because the original presentence report (PSR) did not

verify that he was represented by counsel with regard to the

misdemeanor conviction. See United States v. Morrow, 177 F.3d

272, 305 (5th Cir. 1999). At sentencing, the district court

found that court records showed that Bingham was represented for

the March 25, 1997, conviction. Bingham does not assert that he

was not represented, he simply argues that the court records

cannot be verified independently. This is not sufficient to show

that the district court was clearly erroneous in finding that No. 03-61057 -3-

Bingham had been represented in the proceeding in question.

See McCaskey, 9 F.3d at 372.

Bingham argues that the district court erred when it failed

to reduce his sentence under U.S.S.G. § 5C1.2, the “safety valve”

provision. As discussed above, the district court did not

err in finding that Bingham had two criminal history points.

Bingham was disqualified by § 5C1.2(a)(1) from receiving a safety

valve reduction. United States v. Flanagan, 87 F.3d 121, 124-25

(5th Cir. 1996).

AFFIRMED.