United States v. Lewis

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41516 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER ALLEN LEWIS, also known as L.A.,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas (1:97-CR-19-1) August 12, 1998

Before JOHNSON, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Christopher Allen Lewis challenges the sentence imposed

following his guilty plea conviction for possession with intent to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A). Specifically, he argues that the district court erred

(1)in calculating the amount of cocaine base attributable to him

for sentencing purposes and (2)in refusing to make a downward

departure.

First, Lewis contends that the 137.3 grams of cocaine base

attributed to him in the presentence report (“PSR”) included the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th CIR.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. weight of baking soda which ought to have been excluded as waste.

The amount of drugs involved in an offense is a factual

determination reviewed for clear error. See United States v.

Mergerson, 4 F.3d 337, 345 (5th Cir. 1993), cert. denied, 510 U.S.

1198 (1994). Lewis failed to present any evidence at sentencing

that the amount of cocaine base attributed to him in the PSR

contained any determinable quantity of baking soda. The district

court did not clearly err in adopting the undisputed findings of

the PSR with respect to the drug quantity. See Fed. R. Crim. P.

32(b)(6)(D).

Because Lewis did not demonstrate clear error in connection

with this finding and failed to demonstrate that the cocaine base

contained baking soda, we need not reach the merits of his argument

that baking soda is an excludable waste product under the

sentencing guidelines.

Second, Lewis argues that the district court erred in failing

to grant a downward departure based on the disparity between the

penalties for crack and powder cocaine. This argument is

foreclosed by the law of this circuit. See United States v.

Thomas, 120 F.3d 564, 575 (5th Cir. 1997), cert. denied, 118 S.Ct.

721 (1998); United States v. Fonts, 95 F.3d 372, 374-75 (5th Cir.

1996).

Lewis’ appeal is without arguable merit and is therefore

frivolous. Because it is frivolous, it is dismissed. 5th Cir. R.

42.2.

APPEAL DISMISSED.