United States v. Warren

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-11355 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEON WARREN,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:96-CR-61-1-Y - - - - - - - - - - July 3, 1997 Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Leon Warren appeals his conviction and sentence for

distribution of cocaine base in violation of 21 U.S.C.

§ 841(b)(1)(B). We affirm. Facts contained in dismissed

indictment counts may be used in determining relevant conduct.

U.S.S.G. § 6B1.2(a); United States v. Vital, 68 F.3d 114, 118

(5th Cir. 1995). The district court’s failure to hold that the

Double Jeopardy Clause was violated by the use of the dismissed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 96-11355 - 2 -

counts to determine relevant conduct was not plain error. See

Witte v. United States, 115 S. Ct. 2199, 2207-08 (1995). The

district court did not commit clear error by failing to give

Warren a downward departure based upon a mitigating role in the

offense. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th

Cir. 1994). Warren waived his right to challenge the district

court’s summary dismissal of his motion to dismiss for selective

prosecution by entering an unconditional guilty plea. See United

States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991).

AFFIRMED.