United States v. Dupaquier

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-30367 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY AUGUST DUPAQUIER,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Louisiana ______________________________________________

May 2, 1997 Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gary August Dupaquier appeals the sentence imposed after

reversal on one count and remand for resentencing. The district

court did not commit plain error in departing upward from the

guideline range at resentencing. United States v. Vontsteen, 950

F.2d 1086, 1092-93 (5th Cir.) (en banc), cert. denied, 505 U.S.

1223, 112 S.Ct. 3039 (1992). See also United States v. Campbell,

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 106 F.3d 64, 68-69 (5th Cir. 1997) (adopting the "aggregate

approach" to determine whether the Pearce1 presumption of

vindictiveness attaches and holding that under such approach when

sentence on remand is less severe than the original sentence, the

presumption of vindictiveness does not arise). Nor did it plainly

err in increasing Dupaquier's offense level for resentencing based

on his prior criminal history. See United States v. Hawkins, 87

F.3d 722, 730 (5th Cir.), cert. denied, 117 S.Ct. 408 (1996);

United States v. Singleton, 49 F.3d 129, 132-34 (5th Cir.), cert.

denied, 116 S.Ct. 324 (1995).

Dupaquier's motion to temporarily stay proceedings in this

court, have his attorney withdrawn, and proceed pro se so that he

may file a supplemental brief in DENIED. See Smith v. Collins, 977

F.2d 951, 962 (5th Cir. 1992), cert. denied, 501 U.S. 829, 114

S.Ct. 97 (1993).

AFFIRMED.

1 North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969).