IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40917
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKE ROBERT SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CR-114-1
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November 6, 1997
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-appellant Mike Robert Salinas appeals his guilty-
plea conviction and sentence for bank robbery, a violation of 18
U.S.C. § 2113(d). Salinas has not shown that he was subjected to
“plain error” with regard to the district court’s rejection of a
Government recommendation that he be sentenced at the bottom of
the applicable Sentencing Guidelines range. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). He
* 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that this opinion should not be published and is not precedent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. 96-40917
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also has not demonstrated plain error as to his contention that
his indictment was invalid because it contained no citations to
the Sentencing Guidelines sections under which he might be
sentenced. See id.; United States v. Hagmann, 950 F.2d 175, 182
(5th Cir. 1991). Salinas’ argument that U.S.S.G. § 5H1.4, p.s.
-- which generally prevents a sentencing court from considering a
defendant’s drug or alcohol dependence as a mitigating factor --
is in conflict with 18 U.S.C. § 3577 (renumbered as § 3661) and
28 U.S.C. § 994 is meritless. See United States v. Vela, 927
F.2d 197, 200 (5th Cir. 1991); United States v. Hatchett, 923
F.2d 369, 374 n.4 (5th Cir. 1991). The district court did not
err in determining that Salinas’ use of a simulated bomb during
the robbery, rather than a real bomb, did not warrant
consideration as a mitigating sentencing factor. See United
States v. Cooper, 462 F.2d 1343, 1344 (5th Cir. 1972) (simulated
bomb used during robbery is still “dangerous weapon” for purposes
of 21 U.S.C. § 2113). Salinas’ contention that he is entitled to
a reversal of his sentence because the Probation Office engages
in the “unauthorized practice of law” during presentencing
proceedings is frivolous. See FED. R. CRIM. P. 32(b)(6)(B) & (C).
Finally, this court lacks jurisdiction to address the district
court’s denial of Salinas’s downward-departure request, because
Salinas has not suggested or shown that the district court
mistakenly assumed that it lacked the authority to depart
downward pursuant to U.S.S.G. § 5K1.12, on the basis of duress.
No. 96-40917
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United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
AFFIRMED.