IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40948
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LAVERNE JONES,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:95-CR-20-1
- - - - - - - - - -
July 18, 1996
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
David Laverne Jones appeals his sentence following his
guilty-plea conviction for conspiracy to possess with intent to
distribute crack cocaine. Jones contends that the district court
erred by adjusting his offense level upward for Jones’s role in
the offense; that the cocaine base in his case was not crack
cocaine; and that the district court erred by attributing to him
5.61 kilograms of crack cocaine.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-40948
- 2 -
The presentence report and the testimony at sentencing
support the district court’s finding that Jones was a leader or
organizer of criminal activity involving five or more people or
was otherwise extensive; the upward adjustment was not clearly
erroneous. United States v. Boutte, 13 F.3d 855, 860 (5th Cir.),
cert. denied, 115 S. Ct. 71 (1994); United States v. Barreto, 871
F.2d 511, 512 (5th Cir. 1989).
Jones did not contend in the district court that the cocaine
base in which he trafficked was not crack; his contention is a
factual question that could have been resolved by the district
court had he raised that contention there. Jones cannot
demonstrate plain error. See United States v. Vital, 68 F.3d
114, 119 (5th Cir. 1995).
The indictment alleged that Jones conspired with intent to
distribute 50 grams or more of crack cocaine; his contention that
the indictment limited the amount of crack on which his sentence
could be based is unavailing. In his objections to the
presentence report, Jones implicitly agreed with the cocaine-to-
crack conversion ratio applied by the district court and with the
conversion of the amount of powder cocaine formerly in empty
wrapping material to crack cocaine for sentencing. Jones may not
now complain of the conversion ratio or the conversion of the
powder cocaine in the wrapping material. See Tel-Phonic Servs.,
Inc. v. TBS Int’l Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). The
district court’s attribution of 5.28 kilograms of crack cocaine
based on the six kilograms of cocaine found to have been in the
empty wrapping material was supported by the presentence report
No. 95-40948
- 3 -
and the testimony at sentencing; the district court’s factual
finding was not clearly erroneous. United States v. Maseratti, 1
F.3d 330, 340 (5th Cir. 1993), cert. denied, 114 S. Ct. 1096 &
1552; 115 S. Ct. 292 (1994).
AFFIRMED.