United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-61057
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAD BINGHAM,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:03-CR-31-ALL
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brad Bingham pleaded guilty to two counts of distribution
in excess of 50 grams of methamphetamine. The district court
sentenced Bingham to concurrent terms of 97 months in prison
for each of the two counts of conviction. The district court
also imposed concurrent five-year terms of supervised release.
Bingham, proceeding pro se, appeals his sentence.
*
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that this opinion should not be published and is not precedent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. 03-61057
-2-
Bingham argues that the district court erred in considering
the amounts of narcotics listed in the dismissed counts of the
indictment as relevant conduct to his methamphetamine trafficking
offenses. The district court may consider drug offenses not
specified in the count of conviction if they are part of the
same course of conduct or part of a common scheme or plan.
United States v. Vital, 68 F.3d 114, 118 (5th Cir. 1995);
U.S.S.G. §§ 1B1.3(a)(2), 2D1.1, comment. (n.12). Because all of
the narcotics trafficking occurred within a six week period,
Bingham has not demonstrated that the district court clearly
erred in including all of the dismissed counts as relevant
conduct. United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir.
2000); United States v. McCaskey, 9 F.3d 368, 372 (5th Cir.
1993).
Bingham argues that a single criminal history point should
be deleted because the original presentence report (PSR) did not
verify that he was represented by counsel with regard to the
misdemeanor conviction. See United States v. Morrow, 177 F.3d
272, 305 (5th Cir. 1999). At sentencing, the district court
found that court records showed that Bingham was represented for
the March 25, 1997, conviction. Bingham does not assert that he
was not represented, he simply argues that the court records
cannot be verified independently. This is not sufficient to show
that the district court was clearly erroneous in finding that
No. 03-61057
-3-
Bingham had been represented in the proceeding in question.
See McCaskey, 9 F.3d at 372.
Bingham argues that the district court erred when it failed
to reduce his sentence under U.S.S.G. § 5C1.2, the “safety valve”
provision. As discussed above, the district court did not
err in finding that Bingham had two criminal history points.
Bingham was disqualified by § 5C1.2(a)(1) from receiving a safety
valve reduction. United States v. Flanagan, 87 F.3d 121, 124-25
(5th Cir. 1996).
AFFIRMED.