     Case: 10-30971     Document: 00511518493          Page: 1    Date Filed: 06/23/2011




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

                                                 FILED
                                                                            June 23, 2011
                                     No. 10-30971
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHAD LAWRENCE MOUTON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:08-CR-363-7


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Chad Lawrence Mouton pleaded guilty to conspiracy to possess with intent
to distribute cocaine and methamphetamine and to possession of a firearm by a
convicted felon. He received concurrent prison sentences of 292 months and 120
months, respectively.        On appeal, Mouton contends that the district court
committed procedural error in its application of the Sentencing Guidelines.
Under the plea agreement, the Government agreed that if it determined that
Mouton had provided substantial assistance, it would not seek to enhance his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30971    Document: 00511518493      Page: 2   Date Filed: 06/23/2011

                                  No. 10-30971

sentence beyond that based on only one of his two prior felony drug convictions.
Mouton maintains that, pursuant to the plea agreement, the district court could
use only one of the prior convictions at sentencing. Although Mouton asserts
that the guidelines range, which was based on a finding that he was a career
offender, was properly calculated, he maintains that he should have received a
one-level reduction in his criminal history category once the Government
acknowledged his substantial assistance.
      Generally, we     review   sentences    for procedural and      substantive
reasonableness, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (5th Cir. 2007). However, Mouton failed to argue in the district
court that it was bound by the plea agreement to use only one of his prior
convictions for determining the applicable guidelines range.        Therefore, we
review for plain error only. See United States v. Whitelaw, 580 F.3d 256, 259
(5th Cir. 2009). The district court is not bound by the stipulations of the parties
in sentencing and may determine the relevant sentencing facts with the
assistance of the presentence report. United States v. Rodriguez, 62 F.3d 723,
725 (5th Cir. 1995) (concluding that the district court was not bound by the
parties’ stipulation as to drug quantity). Moreover, the lower guidelines range
espoused by Mouton applied only if the district court agreed with Mouton’s
assertion that his criminal history category was overrepresented. Because the
court did not make such a finding, the lower guidelines range does not apply.
Therefore, Mouton has failed to show any error, much less one that is clear or
obvious.   See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Consequently, the judgment of the district court is AFFIRMED.




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