IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10875
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS EULALIO RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-11-2-A
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May 13, 1998
Before DUHÉ, DeMOSS, and DENNIS, CIRCUIT JUDGES.
PER CURIAM:1
Luis Eulalio Ruiz appeals the sentence he received on his
guilty-plea conviction for conspiracy to possess with the intent to
distribute more than five kilograms of cocaine. We have reviewed
the record de novo and find that Ruiz’s prior convictions were not
part of a single common scheme or plan and were not consolidated
for trial or sentencing and thus were not related and therefore
counted separately for the career offender enhancement provision.
See United States v. Garcia, 962 F.2d 479, 482-83 (5th Cir. 1992).
1
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that this opinion should not be published and is not precedent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.
We find no clear error in the district adopting the findings
of the presentence report regarding the amount of drugs
attributable to Ruiz over his unsworn assertion that he did not
negotiate or agree to the sale of an additional four kilograms of
cocaine. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th
Cir. 1994) (citing Fed. R. Crim. P. 32).
We have reviewed for plain error Ruiz’s argument raised for
the first time on appeal that the district court erred, under
United States v. Mergerson, 4 F.3d 337, 346 (5th Cir. 1993), in
considering negotiated-for sales of cocaine in determining the
amount of drugs attributable for the purposes of invoking the
statutory penalty of § 841(b)(1)(A). See United States v.
Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994); Fed. R. Crim. P.
52(b). Because the district court sentenced Ruiz according to the
sentencing guidelines, the court did not err in considering the
negotiated-for amounts of cocaine for determining the guideline
sentence. See Mergerson, 4 F.3d at 345-46.
Ruiz’s motion to supplement the record with evidence not
presented to the district court is denied. See Fed. R. App. P.
10(e).
AFFIRMED; MOTION DENIED.