USA v. Salvador Alvarado, No. 15-10479 (5th Cir. 2016)

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Case: 15-10479 Document: 00513596133 Page: 1 Date Filed: 07/18/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-10479 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 18, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. SALVADOR ALVARADO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:14-CR-137-1 Before REAVLEY, JONES, and SMITH, Circuit Judges. PER CURIAM: * Salvador Alvarado appeals the 293-month sentence he received following his guilty plea conviction for possession of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841. For the first time on appeal, he argues that the district court erred in basing his sentence on 4.6 kilograms of actual methamphetamine when the undisputed facts show that he bought 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-10479 Document: 00513596133 Page: 2 Date Filed: 07/18/2016 No. 15-10479 three ounces of methamphetamine and five kilograms of a “simulated substance.” As Alvarado concedes, because he did not raise his appellate argument in the district court, review is for plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). However, the amount of methamphetamine attributable to Alvarado is a finding of fact which was capable of resolution upon proper objection in the district court and thus cannot constitute plain error. See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); see also United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Consequently, the district court’s judgment is AFFIRMED. 2

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