United States v. Baker

* 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this opinion should not be published and is not precedent except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
December 6, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50321
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN SCOTT BAKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-48-1
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Kevin Scott Baker appeals the sentence imposed following his
jury conviction for distribution of marijuana. He argues the
following: (1) the district court’s non-Guideline sentence was
plainly erroneous; (2) the charged conduct on which the jury
could not reach a verdict should not have been used to determine
his sentence; (3) the district court clearly erred in awarding a
two-level enhancement pursuant to U.S.S.G. § 3B1.3 for abuse of
position of trust; and (4) the district court clearly erred in

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No. 05-50321
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awarding a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice. We affirm.
Baker did not object to the district court’s upward
deviation, and, therefore, review is for plain error only. See
United States v. Jones, 444 F.3d 430, 436 (5th Cir.), cert.
denied, 126 S. Ct. 2958 (2006). Baker cannot show plain error
with regard to the district court’s finding that he committed the
charged offenses on which the jury could not reach a verdict
because “questions of fact capable of resolution by the district
court can never constitute plain error.” See United States v.
Chung, 261 F.3d 536, 539 (5th Cir. 2001) (internal quotations and
citation omitted).
Furthermore, the jury’s inability to reach a verdict on
counts two and three of the indictment did not prevent the
district court from sentencing Baker based on the charged
conduct. See United States v. Cathey, 259 F.3d 365, 369 (5th
Cir. 2001). Therefore, the district court did not give
significant weight to an improper factor when upwardly deviating,
and its reasons for the deviation were not inconsistent with 18
U.S.C. § 3553(a)(2)(A), (B). See United States v. Smith, 440
F.3d 704, 708 (5th Cir. 2006). Consequently, Baker has shown no
error on the part of the district court.
Baker’s suggestion that the district court failed to give
adequate reasons for its deviation is inadequately briefed and is
therefore waived. See United States v. Thames, 214 F.3d 608, 611

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No. 05-50321
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n.3 (5th Cir. 2000). Baker’s argument that the charged conduct
on which the jury could not reach a verdict should not have been
used to determine his sentence is foreclosed by Cathey, 259 F.3d
at 369.
We hold that Baker’s use of a patrol car, or police-type
vehicle, to distribute the marijuana was sufficient to support
the district court’s § 3B1.3 enhancement. See United States v.
Deville, 278 F.3d 500, 508 (5th Cir. 2002). We further hold that
the record supports the district court’s finding that Baker
perjured himself on the witness stand, thereby warranting a
§ 3C1.1 enhancement. See § 3C1.1 & comment. (n.4(b)); United
States v. Dunnigan, 507 U.S. 87, 94 (1993). The enhancements
were therefore not clearly erroneous. See United States v.
Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.), cert. denied, 126
S. Ct. 268 (2005).
AFFIRMED.

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