IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20826
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SCOTT EVANS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-615-1
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June 7, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges
PER CURIAM:*
David Scott Evans (Evans) appeals his guilty-plea conviction
for aiding and abetting the possession with intent to distribute
more than 10 grams of lysergic acid in violation of 18 U.S.C.
§ 2 and 21 U.S.C. § 841(a)(1), b(1)(A)(v). He contends that the
district court erred in assessing him two criminal history points
for a prior juvenile adjudication which resulted in his
commitment to a mental hospital. He argues that he should have
*
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that this opinion should not be published and is not precedent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. 01-20826
-2-
received only one criminal history point for his juvenile
adjudication, which would have made him eligible for the “safety
valve” provision of United States Sentencing Guidelines § 5C2.3,
thereby reducing his offense level by two points and his
guidelines punishment range to 87 to 108 months.
As Evans failed to raise these arguments at the sentencing
hearing, we review for plain error. See United States v.
McCaskey, 9 F.3d 368, 376 (5th Cir. 1993). As we have not
previously addressed whether commitment to a mental hospital
constitutes a “sentence to confinement” under U.S.S.G.
§ 4A1.2(d)(2)(A) or a “sentence of imprisonment” under U.S.S.G.
§ 4A1.1(b), there can be no plain error with respect to this
issue. Even assuming arguendo that the district court erred in
calculating Evans’s criminal history score and that the
guidelines range should have been 87 to 108 months, Evans has not
shown that the error affected his substantial rights as his
sentence of 100 months was within that range. See United States
v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998); United States v.
Ravitch, 128 F.3d 865, 871 (5th Cir. 1990).
AFFIRMED.