United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-30999
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MERVIN SPENCER, also known as Marvin Spencer,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-162
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Mervin Spencer appeals the sentence imposed after his jury
conviction for one count of possession with intent to distribute
cocaine base (count one) and two counts of distribution of
cocaine base (counts two and three). Because Spencer had prior
drug convictions, he was sentenced to a mandatory sentence of
life imprisonment for count three and to concurrent terms of
imprisonment of 210 months for counts one and two.
On appeal, Spencer contends that the Government
impermissibly manipulated his sentence by delaying his arrest
*
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this opinion should not be published and is not precedent except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. 06-30999
-2-
until after a second controlled purchase so that the aggregate
quantity of cocaine exceeded 50 grams. Sentencing factor
manipulation “occurs when a defendant, although predisposed to
commit a minor or lesser offense, is entrapped in committing a
greater offense subject to greater punishment.” United States v.
Washington, 44 F.3d 1271, 1280 n.29 (5th Cir. 1995) (internal
quotation marks omitted). There is nothing in the record
suggesting that the Government’s conduct was outrageous.
Spencer’s participation in the two drug transactions constituted
conduct properly considered in determining Spencer’s sentence.
Spencer also asserts that the district court erred by
enhancing his sentence based on his prior drug convictions.
Spencer cannot challenge his prior 1987, 1989, and 1990 state
convictions that were alleged in the information filed by the
Government because the prior convictions occurred more than five
years before the date of the information filed by the Government.
See 21 U.S.C. § 851(e).
After briefs had been filed, Spencer filed motions
requesting this court to appoint new counsel and strike Spencer’s
current appeal brief. Attorneys appointed by the district court
under the Criminal Justice Act “shall continue to provide
representation on appeal unless relieved by court order.” FIFTH
CIRCUIT PLAN UNDER THE CRIMINAL JUSTICE ACT, § 5(B). “Counsel may be
relieved upon a showing that there is a conflict of interest
or other most pressing circumstances or that the interests of
No. 06-30999
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justice otherwise require relief of counsel.” Id. Spencer has
not made the required showing.
AFFIRMED; MOTIONS DENIED.