United States v. Brown

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40207 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLIVE ANTHONY BROWN, also known as David Anthony Little,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CR-134-1 - - - - - - - - - - August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Clive Anthony Brown appeals his sentence following a guilty

plea for illegal reentry into the United States following

deportation. He argues that the presentencing report (PSR)

incorrectly calculated his criminal history score and that the

district court erred when it relied on the PSR’s recommended

sentencing range. Specifically, he argues that the PSR should

have treated two separate weapons offenses as related offenses

when calculating his criminal history score because the two

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40207 -2-

offenses were part of the same sentencing proceeding. The issue

was not raised at sentencing; therefore, it is reviewed for plain

error. United States v. Dabeit, 231 F.3d 979, 983 (5th Cir.

2000), cert. denied, 121 S. Ct. 1214 (2001); United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).

There was not enough information in the record to support a

finding that the two weapons offenses were related. See United

States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1988). The

offenses occurred on April 7, 1986, and September 10, 1987. As

reported in the PSR, they were factually unrelated to one another

and were charged in separate indictments. Moreover, there is no

indication that they were consolidated under the same docket

number. Accordingly, Brown’s sentence is AFFIRMED.