IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY PEREZ, MARIO SALINAS, also know as Marcos,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CR-175-D-6
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October 9, 1998
Before DAVIS, DUHE, and PARKER, Circuit Judges.
PER CURIAM:*
Randy Perez and Mario Salinas appeal their jury convictions
for conspiracy to commit arson, 18 U.S.C. § 371, and maliciously
damaging and destroying, by means of fire, a building used in
interstate commerce, 18 U.S.C. § 844(i) and 2.
Perez argues that § 844(i) is unconstitutional on its face
and as applied. Section 844(i) is constitutional on its face.
See United States v. Corona, 108 F.3d 565, 570 (5th Cir. 1997).
Further, the Government produced ample evidence at trial that the
arson substantially affected interstate commerce. Id. at 570-71.
*
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that this opinion should not be published and is not precedent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. 97-10521
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The district court did not abuse its discretion in denying
Perez’s proposed jury instructions because the instructions meet
the requirements set forth under United States v. Lopez, 514 U.S.
549 (1995). See United States v. Robinson, 119 F.3d 1205, 1215
(5th Cir. 1997), cert. denied, 118 S. Ct. 1104 (1998).
Salinas argues that insufficient evidence supports his
conviction under § 844(i). Because Salinas failed to move for
judgment of acquittal at the close of all of the evidence, review
is limited to whether his conviction resulted in a manifest
miscarriage of justice. See United States v. Thomas, 12 F.3d
1350, 1358 (5th Cir. 1994). The Government produced sufficient
evidence of Salinas’ involvement in the planning and execution of
the arson. Salinas conviction did not result in a manifest
miscarriage of justice.
Jordan next contends that he is entitled to a four-level
reduction for his minimal or minor role in the offense. Salinas
was aware of the entire scope of the operation, including the
arson, even if he did not plan it. Accordingly, Salinas has not
shown that he was entitled to the reduction. See United States
v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995).
Next, Salinas argues that the district court erred in
applying a two-level adjustment for more than minimal planning.
The PSR and trial evidence demonstrate that the offense involved
more elaborate planning than is typical for commission of the
offense in a simple form. Accordingly, the district court did
not clearly err in finding that more than minimal planning was
No. 97-10521
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involved. See United States v. Clements, 73 F.3d 1330, 1341 (5th
Cir. 1996).
Next, Salinas contends that the district court erred in
giving him a two-level increase because the arson was committed
to conceal a burglary. The PSR and trial evidence clearly
indicate that the arson was used to conceal a burglary. Thus,
the district court did not clearly err in finding that the arson
was committed to conceal a burglary. See United States v. Brown,
54 F.3d 235, 240 (5th Cir. 1995).
Finally, Salinas argues that the district court improperly
double counted when it gave enhancements under § 2B1.3 and
§ 2K1.4(b)(1). Neither guideline prohibits double counting.
Thus, double counting is permissible under the Sentencing
Guidelines. See United States v. Jones, 145 F.3d 736, 737 (5th
Cir. 1998).
Salinas’ motion to supplement the record excerpts is
unnecessary given that the transcripts to which he refers are
already a part of the record. The motion is DENIED.
Accordingly, the district court’s judgment is AFFIRMED.