United States v. Diaz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10628 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GONZALO ARMANDO DIAZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-228-1-Y - - - - - - - - - -

December 15, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Gonzalo Armando Diaz pleaded guilty to conspiracy to possess

with intent to distribute more than five kilograms of cocaine.

He appeals his sentence arguing that his two prior convictions

for driving while intoxicated should not have been counted

towards his criminal history score and that he therefore should

have been granted a safety-valve adjustment pursuant to U.S.S.G.

§§ 2D1.1(b)(6) and 5C1.2.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10628 -2-

Diaz’s argument regarding his prior convictions primarily

consists of his request for this court to depart from the Supreme

Court’s holding in Nichols v. United States, 511 U.S. 738, 746-48

(1994). The holding in Nichols is not relevant to the facts of

this case. Furthermore, if it were relevant, we could not depart

from Supreme Court precedent. We warn his court-appointed

counsel, R. Sam Pestinger, that pursuing frivolous appeals

invites sanctions. See United States v. Burleson, 22 F.3d 93, 95

(5th Cir. 1994).

Accordingly, this appeal is DISMISSED AS FRIVOLOUS. See 5TH

CIR. R. 42.2.