United States v. Dodson

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 17, 2001
• Docket: 00-60884
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60884 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CUYLER A. DODSON

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CR-85-ALL-BS -------------------- August 15, 2001

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Cuyler A. Dodson appeals his guilty-plea conviction and

sentence for simple possession of crack cocaine. He asserts that

the district court erred in holding that he was subject to an

enhanced maximum of two years’ imprisonment under 21 U.S.C. § 844

because the Government failed to file an information under 21

U.S.C. § 851 giving notice of its intent to use his prior drug

conviction for that purpose. Because Dodson did not object to

this maximum sentence in the district court, review is for plain

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-60884 -2-

error. See United States v. Olano, 507 U.S. 725, 731-37 (1993).

Dodson has failed to show that this error “seriously affect[ed]

the fairness, integrity, or public reputation” of the

proceedings. Id. at 735-36.

Dodson also contends that the district court abused its

discretion in departing upward seven levels and in sentencing him

to a maximum twenty-four month sentence. He has failed to show

that the drug quantity alleged in the indictment and set forth in

the presentence report did not bring his case out of the

“heartland” of cases involving a smaller drug quantity, which set

the basis for the maximum statutory sentence Dodson faced. He

also failed to show that the district court’s other stated

reasons for the upward departure, which included an

underrepresented criminal history category, a dismissed felon-in-

possession count, and Dodson’s disrespect for the law, were not

appropriate bases for an upward departure or that the extent of

the court’s departure was unreasonable. See United States v.

Lopez-Escobar, 884 F.2d 170, 173 (5th Cir. 1989); United States

v. McDowell, 109 F.3d 214, 219 (5th Cir. 1997).

Dodson contends that the district court erred in denying his

motion to suppress the evidence. The district court relied upon

a credibility determination to conclude that the stop and arrest

of Dodson were proper, that Dodson provided consent to search his

vehicle and home, and that Dodson freely and voluntarily waived

his rights. This court may not second-guess the district court’s

findings as to the credibility of witnesses. United States v. No. 00-60884 -3-

Garza, 118 F.3d 278, 283 (5th Cir. 1997). Dodson’s conviction is

AFFIRMED.

Dodson has also moved for release pending appeal. This

motion is DENIED.

AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED.