IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
March 15, 2007
No. 06-40204
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEDERA D. GRAVES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1419-1
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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.06-40204
-2-
Tedera D. Graves appeals the 78-month sentence
imposed following his guilty-plea conviction for
possession with intent to distribute in excess of 1000
kilograms of marijuana. Graves’s contentions are raised
for the first time on appeal and are reviewed for plain
error only. United States v. Rodriguez, 15 F.3d 408,
414-15 (5th Cir. 1994).
Graves argues that the district court plainly erred by
failing to grant him a sentence reduction pursuant to the
safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2. A defendant eligible for safety-valve relief must
not have more than one criminal history point. § 3553(f);
§ 5C1.2(a)(1). Graves had three criminal history points
based on his prior drug conviction and his commission of
the instant offense while on probation for the prior drug
offense. As such, Graves is ineligible for safety valve
No.06-40204
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relief, and the district court did not commit error, plain or
otherwise, by failing to grant Graves such relief.
Graves contends that he stipulated only that
testimony provided by the Government would establish
that his offense involved a specific drug quantity. He
asserts that because he did not stipulate that such
testimony was true, the district court plainly erred by
sentencing him in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), based on facts that were not
submitted to a jury and proven beyond a reasonable
doubt.
Graves stipulated to possessing 734 kilograms of
marijuana, and his sentence was based on that admitted
fact. Graves’s claim that he stipulated only that the
testimony would reveal that his offense involved 734
kilograms of marijuana is refuted by the record. The
quantity of drugs attributed to Graves does not implicate
No.06-40204
-4-
the holdings in Apprendi and United States v. Booker,
543 U.S. 220 (2005). The district court did not commit
error, plain or otherwise.
AFFIRMED.