(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-4128
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES MICHAEL DEMILIA,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:91-CV-168
- - - - - - - - - -
March 19, 1993
Before KING, DAVIS, and SMITH, Circuit Judges.
PER CURIAM:*
Demilia argues that the Government breached its plea
agreement "by the Courts [sic] use of the dismissed counts of the
indictment being used to establish the offense level for
sentencing purposes." He argues that because the count of the
indictment to which he pleaded guilty indicated the amount of
marijuana attributable to the offense of conviction was 130
pounds, his sentence should not have been based on 1,027 pounds
of marijuana.

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No. 92-4128
-2-
A district court is not bound by the quantity of drugs
mentioned in the indictment or in the plea agreement, "but may
with the aid of the presentence report, determine the facts
relevant to sentencing." United States v. Garcia, 902 F.2d 324,
326 (5th Cir. 1990)(quoting U.S.S.G. § 6B1.4(d)). Further, an
examination of the record reveals that Demilia agreed to the
1,027-pound figure in the plea agreement.
Demilia also argues that the district court should not have
accepted the plea agreement if it intended to count the dismissed
charges in calculating his sentence. The district court accepted
a plea agreement which stipulated that 1,027 pounds of marijuana
were attributable to Demilia. The court used that amount to
sentence Demilia. Demilia's argument is without merit, and the
judgment of the district court is AFFIRMED.

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