IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30619
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EUGENE DISHNER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CR-1-1
--------------------
February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
A jury convicted David Eugene Dishner of conspiracy to
commit mail fraud and of eleven counts of mail fraud. Dishner
appeals his forty-one-month sentence, arguing that the district
court erred by increasing his offense level pursuant to U.S.S.G.
§ 3B1.1(a), which provides for a four-level upward adjustment if
the defendant was an organizer or leader of an offense involving
five or more participants or that was otherwise extensive.
Dishner argues that this upward adjustment is erroneous because
*
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that this opinion should not be published and is not precedent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. 01-30619
-2-
there is no evidence in the record to support a finding that five
or more participants were involved in the offense.
At his sentencing hearing, Dishner’s attorney argued that
it would be “appropriate” for the district court to impose a
three-level upward adjustment under U.S.S.G. § 3B1.1(b), which
provides for a three-level upward adjustment if the defendant was
a manager or supervisor of an offense involving five or more
participants that was otherwise extensive. Dishner has thus
waived any challenge to the number of participants in the
offense, and his argument is not reviewable on appeal. See
United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995); see
also United States v. Olano, 507 U.S. 725, 733-34 (1993).
This appeal is frivolous; it is DISMISSED. 5TH CIR. R. 42.2.