United States v. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 7, 2002
• Docket: 01-20410
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20410 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JIMMIE SMITH, also known as Jimmy Smith,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-377-1 -------------------- February 6, 2002 Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Jimmie Smith appeals his sentence for aiding and abetting

the possession with intent to distribute cocaine base and

conspiracy to distribute cocaine base. He contends that the

district court erred in finding that he was a leader or organizer

of a criminal activity that involved five or more participants

pursuant to U.S.S.G. § 3B1.1(a). He also contends that he should

be resentenced in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), and its progeny because the factors used to enhance his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20410 -2-

sentence were not presented to a jury and proved beyond a

reasonable doubt.

The facts presented in the presentence report and the

testimony at the sentencing hearing support the district court’s

finding that Smith was an organizer or leader of a conspiracy to

distribute crack cocaine. See United States v. Glinsey, 209 F.3d

386, 396 (5th Cir.), cert. denied, 531 U.S. 919 (2000).

Moreover, Smith did not specifically object to the district

court's factual finding, implicit in its adoption of the

presentence report, that the activity involved five or more

participants, and his argument in this regard is therefore

reviewed for plain error. See United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994). The facts set forth in the

presentence report support the inference that at least five

people willfully participated in and were criminally responsible

for the drug activity, and thus Smith has not shown that the

district court plainly erred in finding that the criminal

activity involved five or more participants pursuant to U.S.S.G.

§ 3B1.1(a).

Smith concedes that his Apprendi argument is foreclosed by

United States v. Clinton, 256 F.3d 311 (5th Cir. 2001). He

raises the issue to preserve it for further review.

AFFIRMED.