UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-10438

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER TREVINO,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

December 22, 1997

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Trevino, having pleaded guilty to participating

in a conspiracy to distribute cocaine from 1993 through July 1996

and to a specific instance of possession with intent to distribute

cocaine on May 22, 1996, contests his sentence under the

Guidelines. He contends that he was erroneously given an

additional criminal history point, pursuant to U.S.S.G. § 4A1.1(e),

based on the court’s finding that his offense was committed within

two years from his release from custody on a prior relevant
2

sentence. Trevino contends that “the instant offense” and all

relevant conduct for sentencing purposes occurred on May 22, 1996,

more than two years after his release from imprisonment. We

disagree and AFFIRM the sentence issued by the trial court.

Trevino’s argument hinges on the assumption that he was

not linked to the conspiracy count, to which he pled guilty, prior

to the specific offense committed on May 22, 1996. He acknowledges

that under the pertinent guideline, an additional criminal history

point may be added when the defendant “committed any part of the

instant offense (i.e., any relevant conduct) less than two years

following release from confinement.” U.S.S.G. § 4A1.1(e), comment.

(n.5). Relevant conduct, he contends, does not include

conspiratorial activities before May 22, 1996.

Trevino’s argument contradicts his guilty plea

proceedings. First, the conspiracy count to which he pled guilty

stated that he and others conspired to possess with intent to

distribute and distributed five kilograms or more of cocaine

“[f]rom or about, 1993 and continuing through on or about July,

1996 . . . .” Second, the factual resume, signed and agreed to by

both Trevino and his attorney, states: 

During the time periods alleged in the Superseding Indictment,

the defendant . . . and other conspirators . . . did

unlawfully conspire . . . to commit violations of the federal

controlled substances laws. Specifically during the time

period alleged in the Superseding Indictment, Trevino and

other co-conspirators agreed and conspired together to

distribute and possess with intent to distribute five (5)

kilograms or more of a mixture and substance containing a

detectable amount of cocaine.
3

By entering his plea of guilty, Trevino admitted all elements of

the charge contained in this conspiracy count of the indictment. 

See McCarthy v. United States, 394 U.S. 459 (1969). In fact, he

admitted his involvement in the conspiracy beginning in 1993 and

continuing through July 1996. Since this involvement falls within

the two-year period discussed in U.S.S.G. § 4A1.1(e), the district

court properly added the criminal history point. See United States

v. Alexander, 53 F.3d 888, 892 (8th Cir. 1995) (holding that

engaging in a conspiracy within two years of release from prison

merits the application of U.S.S.G. § 4A1.1(e)).

AFFIRMED.