IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-30864

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

L.S. POUNCY,

Defendant-Appellant.

 

No. 00-30958

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLYDE O’NEAL, III,

Defendant-Appellant.

 

No. 00-31146

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY LEE DEBOSE,

Defendant-Appellant.

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Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 99-CR-50082-3

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November 19, 2001
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* 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that this opinion should not be published and is not precedent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.

Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

L.S. Pouncy and Clyde O’Neal appeal the sentences following

their guilty plea convictions. Pouncy pleaded guilty to

conspiracy to possess with intent to distribute 50 or more grams

of cocaine base. O’Neal pleaded guilty to conspiracy to possess

with intent to distribute 500 or more grams of cocaine. Both

Pouncy and O’Neal assented to a forfeiture-of-property count

under 21 U.S.C. § 853. Roy Lee Debose was convicted by a jury of

two conspiracy counts, one to possess with intent to distribute

500 or more grams of cocaine and one to possess with intent to

distribute 50 or more grams of cocaine base.

Pouncy argues that $100 special assessment should not have

been imposed for his forfeiture count. However, Pouncy did not

raise this objection in the district court, and he has not shown

that the imposition of the special assessment was plain error. 

See United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th

Cir. 1998); Fed. R. Crim. P. 52(b). His sentence is AFFIRMED.

O’Neal argues that the district court should have credited

his offense level by two because O’Neal was a minor participant

in the offense. Our review of the presentence report and

sentencing record reveals that the district court did not clearly

err by not sustaining O’Neal’s role-in-the-offense objection. 
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See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). 

O’Neal was also imposed a $100 special assessment for his

forfeiture count; however, like Pouncy, he does not show that the

special assessment was plain error. O’Neal’s sentence is

AFFIRMED. 

Debose argues that there was insufficient evidence to

support his conviction for either of his conspiracy counts, that

there was a material variance between the trial evidence and the

conspiracy allegations in the indictment, that the district court

should have sentenced Debose within the Sentencing Guidelines

range for count two because he satisfied the requirements of the

safety-valve provision, that he should have been assessed only

one criminal history point, and that he should have received a

minimal-role-in-the-offense adjustment to his offense level.

Our review of the trial evidence reveals that Debose was

aware of the conspiracy and that he took actions to participate

in the conspiracy. See United States v. Puig-Infante, 19 F.3d

929, 936 (5th Cir. 1994); United States v. Morris, 46 F.3d 410,

416 (5th Cir. 1995). The evidence at trial did not prove that

Debose was involved in a conspiracy different than the one

alleged in the indictment; nor were Debose’s substantial rights

affected. See United States v. Morgan, 117 F.3d 849, 858 (5th

Cir. 1997); United States v. Mikolajczyk, 137 F.3d 237, 243 (5th

Cir. 1998). The calculation of his criminal history category was

correct, Debose did not meet the requirements of 18 U.S.C. 
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§ 3553(f), and he was not entitled to be sentenced under the

safety-valve provision. See United States v. Flanagan, 80 F.3d

143, 146 (5th Cir. 1996). The district court’s refusal to credit

Debose’s offense level for a role-in-the-offense adjustment was

not clear error. See Zuniga, 18 F.3d 1254, 1261. 

Debose’s conviction and sentence are AFFIRMED. Pouncy’s and

O’Neal’s sentences are AFFIRMED.