Case: 09-60447     Document: 00511114398          Page: 1    Date Filed: 05/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 18, 2010
                                     No. 09-60447
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARCUS MELVIN, also known as Shabo,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:08-CR-28-7


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        Marcus Melvin appeals from his sentence of 60 months of imprisonment
following his conviction for conspiring to possess with intent to distribute more
than five kilograms of cocaine hydrochloride. Melvin argues that the district
court erred by imposing a U.S.S.G. § 4A1.1(d) enhancement because it found
that he was serving a previously imposed term of probation at the time of the
instant offense. Because Melvin did not object to the calculation of his criminal
history category in the district court, we review for plain error. See United

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60447   Document: 00511114398 Page: 2        Date Filed: 05/18/2010
                                No. 09-60447

States v. Alvarado-Santilano, 

, 795 (5th Cir. 2005). Whether a term
of probation has expired at the time that a conspiracy began is an issue of fact.
United States v. Ingles, 

, 839-40 (5th Cir. 2006)(reviewing the issue
for clear error). Because the district court could have resolved this issue upon
objection at sentencing, we cannot find plain error. See United States v. Chung,

, 539 (5th Cir. 2001).      In any event, because the conspiracy
commenced in March 2007 and because the probationary period at issue did not
end until June 2007, the district court did not err, either plainly or clearly, by
imposing the enhancement. See 

. Given that, pursuant
to § 4A1.1(d), Melvin was properly assessed at least two criminal history points,
the district court did not err by denying Melvin a safety valve adjustment. See
18 U.S.C. § 3553(f)(1).
      This court need not address Melvin’s remaining arguments regarding the
alleged miscalculation of his criminal history category or his contention that he
deserved an offense level reduction pursuant to U.S.S.G. § 3B1.2. Because
Melvin’s guidelines range was determined by the 10-year statutory minimum,
the alleged errors, even if proven, did not affect his guidelines range and were
harmless. See United States v. Delgado-Martinez, 

, 753 (5th Cir.
2009). The record demonstrates that the district court properly regarded the
guidelines range as the “initial benchmark” from which it departed. Gall v.
United States, 

, 49 (2007). The court indicated that it understood
that the guidelines range was advisory and that it had considered the § 3553(a)
factors as well as the U.S.S.G. § 5K1.1 factors in arriving at the appropriate
sentence. Melvin, who did not object to his sentence, fails to show that the
district court plainly erred by imposing a procedurally or substantively
unreasonable sentence. See 

; United States v. Peltier, 

, 391-92 (5th Cir. 2007).
      AFFIRMED.



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