United States v. King

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-61008
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELREKIKO KING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:03-CR-79-2-D
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Elrekiko King appeals the sentence imposed following his
guilty plea to conspiracy to possess with intent to distribute
marijuana. We affirm.
We reject King’s contention that the district court plainly
erred in determining the relevant drug quantity; the district
court was not bound by the quantity of drugs mentioned in the
indictment, insofar as quantities of drugs not specified in the
count of conviction may be considered as relevant conduct for
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2004
Charles R. Fulbruge III
Clerk

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No. 03-61008
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purposes of determining the offense level. See United States v.
Sarasti, 869 F.2d 805, 806-07 (5th Cir. 1989); U.S.S.G. § 2D1.1,
comment. (n.12) (2002).
We hold that the extent of the district court’s downward
departure was not plainly erroneous. See United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000); United States v.
Lemons, 941 F.2d 309, 320 (5th Cir. 1991). We further hold that
King’s criminal history was accurately represented in the
Presentence Report; his criminal history score reflects no prior
convictions.
Insofar as King contends that the district court should have
ordered that he receive substance abuse treatment while
incarcerated, the decision whether a prisoner receives treatment
for substance abuse is left to the discretion of the Bureau of
Prisons, and, therefore, it was beyond the district court’s
authority to order his participation in a drug treatment program
while incarcerated. See 18 U.S.C. § 3621(b).
AFFIRMED.

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