United States v. Smith

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30957
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES RAY SMITH, JR.,
also known as Charlieman,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 93-CR-50054-ALL
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June 14, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Charles Ray Smith, Jr., appeals from the sentence imposed
following his guilty plea conviction for carjacking. Smith
argues that the district court erred in adding three points to
his criminal history score because (1) his guilty plea to the
escape and firearm charge was not a prior sentence under U.S.S.G.
§ 4A1.1(a) because the escape was actually conduct constituting
part of the carjacking offense, and (2) his conviction for use of

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No. 99-30957
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a firearm during an escape is invalid under Bailey v. United
States, 516 U.S. 137 (1995).
Because Smith did not challenge the addition of the three
points to his criminal history score for his conviction related
to his escape, this court’s review is for plain error only. See
United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994).
Smith has not shown that the district court plainly erred when it
added three criminal history points for the escape and firearm
conviction. United States v. Arrellano-Rocha, 946 F.2d 1105 (5th
Cir. 1991). Even if the district court could have addressed the
validity of Smith’s prior firearm conviction, the degree to which
Smith participated in the escape is a question of fact.
Questions of fact at sentencing capable of resolution by district
court can never be plain error. United States v. Vital, 68 F.3d
114, 119 (5th Cir. 1995)). We decline to exercise our discretion
to consider the issue for the first time on appeal.
AFFIRMED.

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