U.S. v. Lopez, 89-5703

Citation923 F.2d 47
Decision Date23 January 1991
Docket NumberNo. 89-5703,89-5703
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert LOPEZ, Defendant-Appellant. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 47

923 F.2d 47
UNITED STATES of America, Plaintiff-Appellee,
Robert LOPEZ, Defendant-Appellant.
No. 89-5703
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Jan. 23, 1991.

Page 48

David L. Ylitalo, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Philip Police, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit Judges.


Robert P. Lopez appeals the sentence imposed upon his plea of guilty to possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). He failed to object in any way at his sentencing hearing to the application of the Sentencing Guidelines to his cause. Finding no plain error, we affirm.


Robert Lopez was indicted for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana, both alleged to have been committed on December 20, 1988. Lopez pleaded guilty to the possession count, and the conspiracy charge was dropped. The court sentenced Lopez on November 20, 1989, adopting the statements in the presentence investigative report (PSI) as its own. The court determined an offense level of 24 and a criminal history category of III. The applicable guideline range was 63-78 months. Lopez did not object to the PSI or contest its factual statements, nor did he in any way challenge the district court's application of the guidelines. The court sentenced Lopez to 70 months in prison, five

Page 49

years supervised release, and a $50 special assessment. He appeals only his sentence.

The recency of a "prior sentence" is relevant to the assessment of points attributable to the defendant's criminal history category. See U.S.S.G. Sec. 4A1.2(a), (e). All prior sentences "imposed within ten years" of the commission of the offense are considered recent enough for the court to count when totalling the defendant's criminal history points. U.S.S.G. Sec. 4A1.2(e)(1), (2). Here, the district court assessed five criminal history points on the basis of sentences imposed for Lopez's prior convictions. One of these points stemmed from his January 1979 sentence for the June 1978 offense of driving while intoxicated.

Lopez contends it is fundamentally unfair to calculate his criminal history category based on the sentencing date of past crimes, as opposed to the commission date of those crimes. He argues that U.S.S.G. Sec. 4A1.1(c), as applied to him, violates due process because the delay in his conviction and sentencing for driving while intoxicated caused a greater sentencing score to be applicable to his current offense. He argues in the alternative that the court incorrectly interpreted this guideline when it determined prior offenses were to be counted based upon the date of sentence imposition instead of crime commission.

Lopez made no objection whatsoever to either the PSI's assessment of his past sentences or the district court's computation of his criminal history category. He may not raise an objection now, for the first time on appeal, absent plain error. United States v. Brunson, 915 F.2d 942, 944 (5th Cir.1990). To support his contention that plain error has occurred, Lopez cites United States v. Stephenson, 887 F.2d 57 (5th Cir.1989), cert. denied sub nom. Goff v. United States, --- U.S. ----, 110 S.Ct. 1151, 107 L.Ed.2d 1054 (1990), where we held that misapplication of the guidelines is not subject to harmless error analysis, but requires remand for resentencing. Id. at 62; see Brunson, 915 F.2d at 945 (Rubin, J., dissenting).

FED.R.CRIM.P. 52(a) provides: "Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." We have reasoned that harmless error has occurred "[w]here the negative is established that the error does not affect substantial rights." Helms v. United States, 340 F.2d 15, 19 n. 1 (1964) (emphasis original). FED.R.CRIM.P. 52(b) provides: "Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain error has occurred "[w]here the affirmative is established that the error does affect substantial rights." Helms, 340 F.2d at 19 n. 2 (emphasis original). Thus, consideration of both harmless error and plain error involves an assessment of the impact on the...

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