United States v. Starks

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 27, 2001
• Docket: 99-60830
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60830 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE LEE STARKS, also known as “Cat Daddy”,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:98-CR-92-1-S-B -------------------- April 27, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Willie Lee Starks appeals from his conviction by guilty plea

of conspiring to extort payoffs under color of official right and

attempting to commit extortion under color of official right. He

suggests that his sentence violated Apprendi v. New Jersey, 120

S. Ct. 2348 (2000), but he did not adequately argue any Apprendi

issue for appeal. See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987). We address in turn the

arguments that Starks does brief for appeal.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60830 -2-

Starks contends that the district court erred by attributing

22.5 kilograms of crack cocaine to him. He argues that the

district court should have applied a heightened evidentiary

standard in his case because the cross-reference to the drug-

trafficking guideline dramatically increased his punishment. He

further argues that the evidence was insufficient under a

heightened evidentiary standard to support the attribution of the

crack cocaine.

The record does not demonstrate that Starks raised his

contention regarding the evidentiary standard in the district

court. Nor did he challenge the attribution of 22.5 kilograms of

crack cocaine. Our review of Starks’s contentions regarding the

evidentiary standard and the attribution of cocaine therefore is

under the plain-error standard. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994)(en banc).

“Questions of fact capable of resolution by the district

court upon proper objection at sentencing can never constitute

plain error.” United States v. Vital, 68 F.3d 114, 119 (5th Cir.

1995)(internal punctuation marks and citations omitted). The

amount of drugs attributed to Starks is a factual issue that

could have been resolved upon proper objection at sentencing.

See United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993).

Because the attribution of crack cocaine to Starks cannot

constitute plain error, the evidentiary standard that should have

been applied by the district court is a nonissue. We do not

address Starks’s evidentiary-standard contention. No. 99-60830 -3-

Starks contends that the district court erred by adjusting

his offense level for his role as a leader/organizer. The

leader/organizer finding in Starks’s case was not clearly

erroneous. United States v. Watson, 988 F.2d 544, 550 (5th Cir.

1993).

Starks contends that the district court erred by denying his

request for a downward departure from the guideline sentencing

range. We lack jurisdiction to consider Starks’s contention.

United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).

AFFIRMED.