United States v. Evans

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20826 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID SCOTT EVANS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-615-1 -------------------- June 7, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges

PER CURIAM:*

David Scott Evans (Evans) appeals his guilty-plea conviction

for aiding and abetting the possession with intent to distribute

more than 10 grams of lysergic acid in violation of 18 U.S.C.

§ 2 and 21 U.S.C. § 841(a)(1), b(1)(A)(v). He contends that the

district court erred in assessing him two criminal history points

for a prior juvenile adjudication which resulted in his

commitment to a mental hospital. He argues that he should have

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20826 -2-

received only one criminal history point for his juvenile

adjudication, which would have made him eligible for the “safety

valve” provision of United States Sentencing Guidelines § 5C2.3,

thereby reducing his offense level by two points and his

guidelines punishment range to 87 to 108 months.

As Evans failed to raise these arguments at the sentencing

hearing, we review for plain error. See United States v.

McCaskey, 9 F.3d 368, 376 (5th Cir. 1993). As we have not

previously addressed whether commitment to a mental hospital

constitutes a “sentence to confinement” under U.S.S.G.

§ 4A1.2(d)(2)(A) or a “sentence of imprisonment” under U.S.S.G.

§ 4A1.1(b), there can be no plain error with respect to this

issue. Even assuming arguendo that the district court erred in

calculating Evans’s criminal history score and that the

guidelines range should have been 87 to 108 months, Evans has not

shown that the error affected his substantial rights as his

sentence of 100 months was within that range. See United States

v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998); United States v.

Ravitch, 128 F.3d 865, 871 (5th Cir. 1990).

AFFIRMED.