Case: 15-10479 Document: 00513596133 Page: 1 Date Filed: 07/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10479
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 18, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
SALVADOR ALVARADO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:14-CR-137-1
Before REAVLEY, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Salvador Alvarado appeals the 293-month sentence he received following
his guilty plea conviction for possession of methamphetamine with the intent
to distribute, in violation of 21 U.S.C. § 841. For the first time on appeal, he
argues that the district court erred in basing his sentence on 4.6 kilograms of
actual methamphetamine when the undisputed facts show that he bought
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-10479 Document: 00513596133 Page: 2 Date Filed: 07/18/2016
No. 15-10479
three ounces of methamphetamine and five kilograms of a “simulated
substance.”
As Alvarado concedes, because he did not raise his appellate argument
in the district court, review is for plain error only. See Puckett v. United States,
556 U.S. 129, 135 (2009). However, the amount of methamphetamine
attributable to Alvarado is a finding of fact which was capable of resolution
upon proper objection in the district court and thus cannot constitute plain
error. See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); see also
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Consequently, the
district court’s judgment is AFFIRMED.
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