* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50321

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN SCOTT BAKER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:04-CR-48-1

--------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Kevin Scott Baker appeals the sentence imposed following his

jury conviction for distribution of marijuana. He argues the

following: (1) the district court’s non-Guideline sentence was

plainly erroneous; (2) the charged conduct on which the jury

could not reach a verdict should not have been used to determine

his sentence; (3) the district court clearly erred in awarding a

two-level enhancement pursuant to U.S.S.G. § 3B1.3 for abuse of

position of trust; and (4) the district court clearly erred in
No. 05-50321

-2-

awarding a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for

obstruction of justice. We affirm.

Baker did not object to the district court’s upward

deviation, and, therefore, review is for plain error only. See

United States v. Jones, 444 F.3d 430, 436 (5th Cir.), cert.

denied, 126 S. Ct. 2958 (2006). Baker cannot show plain error

with regard to the district court’s finding that he committed the

charged offenses on which the jury could not reach a verdict

because “questions of fact capable of resolution by the district

court can never constitute plain error.” See United States v.

Chung, 261 F.3d 536, 539 (5th Cir. 2001) (internal quotations and

citation omitted). 

Furthermore, the jury’s inability to reach a verdict on

counts two and three of the indictment did not prevent the

district court from sentencing Baker based on the charged

conduct. See United States v. Cathey, 259 F.3d 365, 369 (5th

Cir. 2001). Therefore, the district court did not give

significant weight to an improper factor when upwardly deviating,

and its reasons for the deviation were not inconsistent with 18

U.S.C. § 3553(a)(2)(A), (B). See United States v. Smith, 440

F.3d 704, 708 (5th Cir. 2006). Consequently, Baker has shown no

error on the part of the district court. 

Baker’s suggestion that the district court failed to give

adequate reasons for its deviation is inadequately briefed and is

therefore waived. See United States v. Thames, 214 F.3d 608, 611
No. 05-50321

-3-

n.3 (5th Cir. 2000). Baker’s argument that the charged conduct

on which the jury could not reach a verdict should not have been

used to determine his sentence is foreclosed by Cathey, 259 F.3d

at 369. 

We hold that Baker’s use of a patrol car, or police-type

vehicle, to distribute the marijuana was sufficient to support

the district court’s § 3B1.3 enhancement. See United States v.

Deville, 278 F.3d 500, 508 (5th Cir. 2002). We further hold that

the record supports the district court’s finding that Baker

perjured himself on the witness stand, thereby warranting a 

§ 3C1.1 enhancement. See § 3C1.1 & comment. (n.4(b)); United

States v. Dunnigan, 507 U.S. 87, 94 (1993). The enhancements

were therefore not clearly erroneous. See United States v.

Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.), cert. denied, 126

S. Ct. 268 (2005). 

AFFIRMED.