United States v. Graves

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED March 15, 2007 No. 06-40204 Summary Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TEDERA D. GRAVES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-1419-1 --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.06-40204 -2-

Tedera D. Graves appeals the 78-month sentence

imposed following his guilty-plea conviction for

possession with intent to distribute in excess of 1000

kilograms of marijuana. Graves’s contentions are raised

for the first time on appeal and are reviewed for plain

error only. United States v. Rodriguez, 15 F.3d 408,

414-15 (5th Cir. 1994).

Graves argues that the district court plainly erred by

failing to grant him a sentence reduction pursuant to the

safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2. A defendant eligible for safety-valve relief must

not have more than one criminal history point. § 3553(f);

§ 5C1.2(a)(1). Graves had three criminal history points

based on his prior drug conviction and his commission of

the instant offense while on probation for the prior drug

offense. As such, Graves is ineligible for safety valve No.06-40204 -3-

relief, and the district court did not commit error, plain or

otherwise, by failing to grant Graves such relief.

Graves contends that he stipulated only that

testimony provided by the Government would establish

that his offense involved a specific drug quantity. He

asserts that because he did not stipulate that such

testimony was true, the district court plainly erred by

sentencing him in violation of Apprendi v. New Jersey,

530 U.S. 466 (2000), based on facts that were not

submitted to a jury and proven beyond a reasonable

doubt.

Graves stipulated to possessing 734 kilograms of

marijuana, and his sentence was based on that admitted

fact. Graves’s claim that he stipulated only that the

testimony would reveal that his offense involved 734

kilograms of marijuana is refuted by the record. The

quantity of drugs attributed to Graves does not implicate No.06-40204 -4-

the holdings in Apprendi and United States v. Booker,

543 U.S. 220 (2005). The district court did not commit

error, plain or otherwise.

AFFIRMED.