IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11355
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON WARREN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:96-CR-61-1-Y
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July 3, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Leon Warren appeals his conviction and sentence for
distribution of cocaine base in violation of 21 U.S.C.
§ 841(b)(1)(B). We affirm. Facts contained in dismissed
indictment counts may be used in determining relevant conduct.
U.S.S.G. § 6B1.2(a); United States v. Vital, 68 F.3d 114, 118
(5th Cir. 1995). The district court’s failure to hold that the
Double Jeopardy Clause was violated by the use of the dismissed
*
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that this opinion should not be published and is not precedent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.
No. 96-11355
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counts to determine relevant conduct was not plain error. See
Witte v. United States, 115 S. Ct. 2199, 2207-08 (1995). The
district court did not commit clear error by failing to give
Warren a downward departure based upon a mitigating role in the
offense. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th
Cir. 1994). Warren waived his right to challenge the district
court’s summary dismissal of his motion to dismiss for selective
prosecution by entering an unconditional guilty plea. See United
States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991).
AFFIRMED.