United States v. Coveleskie

* 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that this opinion should not be published and is not precedent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. 00-20287
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALAN DONALD COVELESKIE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-634-1
--------------------
February 1, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alan Donald Coveleskie appeals his sentences for use of the
internet for certain activities relating to child pornography in
violation of 18 U.S.C. §§ 2252A(a)(1) and 2256(8). We review the
district court's application and interpretation of the sentencing
guidelines de novo and its factual findings for clear error.
United States v. Flucas, 99 F.3d 177, 178 (5th Cir. 1996). There
is no clear error if the district court's factual finding is
plausible in light of the record read as a whole. United States
v. Parker, 133 F.3d 322, 330 (5th Cir. 1998).

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No. 00-20287
-2-
Coveleskie concedes that his argument that the district
court erred in applying a five-level sentence enhancement
pursuant to U.S.S.G. § 2G2.2(b)(2) is foreclosed by our
precedent. See United States v. Fowler, 216 F.3d 459 (5th Cir.
2000); United States v. Canada 110 F.3d 260, 262-63 (5th Cir.
1997).
The district court's determination that Coveleskie engaged
in a pattern of activity justifying a five-level sentence
enhancement pursuant to U.S.S.G. § 2G2.2(b)(4) is plausible in
light of the record as a whole, and thus Coveleskie has shown no
clear error. See Parker, 133 F.3d at 330.
Coveleskie's argument that his sentences violate Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000), is foreclosed by our
precedent because his sentences did not exceed the statutory
maximum. See United States v. Meshack, 225 F.3d 556 (5th Cir.
2000).
AFFIRMED.

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