IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-31229
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. CR-95-34-D
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April 14, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
Timothy Thomas appeals his sentence for distribution of
cocaine in violation of 21 U.S.C. § 841(a)(1). Thomas argues
that the Government breached the plea agreement. We have
reviewed the record and find no plain error. The Government
proffered evidence concerning Counts II and III only after the
district court ordered it to do so, and not before re-urging its
position that it did not oppose exclusion of such evidence as
*
The court has determined that this opinion should not be
published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
relevant conduct. Also, because all relevant conduct must be
considered in determining the base level offense,1 Thomas
is unable to demonstrate that the alleged breach of the plea
agreement affected his substantial rights.2
AFFIRMED.
1
United States v. Vital, 68 F.3d 114, 117 (5th Cir.
1995); United States v, Byrd, 898 F.2d 450, 452 (5th Cir. 1990).
2
See United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994)(en banc), cert. denied, 115 S.Ct. 1266 (1995).