United States v. O'Neal

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10464
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN O’NEAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-289-4
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Steven O’Neal appeals his sentence following his guilty-plea
conviction for conspiracy to possess with intent to distribute
and to distribute 500 grams or more of methamphetamine. He
argues that the district court plainly erred in denying him a
minor-role adjustment to his offense level under U.S.S.G.
§ 3B1.2. The district court’s determination that a defendant did
not play a minor or minimal role in the offense is a finding of
fact. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005). “Questions of fact

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No. 06-10464
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capable of resolution upon proper objection at sentencing can
never constitute plain error.” United States v. Lopez, 923 F.2d
47, 50 (5th Cir. 1991). Whether O’Neal was a minor participant
in the conspiracy could have been resolved upon proper objection
at sentencing. Thus, O’Neal cannot demonstrate plain error as to
that factual question. We further note O’Neal cannot possibly
demonstrate any effect upon his substantial rights from failure
to grant a reduction because his status as a career offender
determined his offense level. See United States v. Olano,
507 U.S. 725, 731-32; U.S.S.G. § 4B1.1. The Government’s motion
for summary affirmance is GRANTED. O’Neal’s sentence is
AFFIRMED.

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