              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                        No. 06-51393                       FILED
                                      Summary Calendar                 October 25, 2007

                                                                    Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                    Clerk

                                                     Plaintiff-Appellee

v.

TRACY DONNELL BOGARD

                                                     Defendant-Appellant


                        Appeal from the United States District Court
                            for the Western District of Texas
                                USDC No. 6:05-CR-137-2


Before WIENER, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Tracy Donnell Bogard challenges the sentence imposed
following his guilty-plea conviction of conspiracy to distribute at least 500 grams of
methamphetamine, possession with intent to distribute a detectable amount of
methamphetamine, and “conspiracy to possess with intent to distribute and distribute at
least five grams of ‘crack’ cocaine,” in violation of 21 U.S.C. §§ 841 and 846. Although
Bogard concedes that he has two prior convictions in Mississippi state court of robbery



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-51393

with a deadly weapon, he contends that the district court erred by determining that these
convictions were “crimes of violence” and thus warranted enhancement for his being a
career offender under U.S.S.G. § 4B1.1(a)(2005). He also contends that the district court
(1) clearly erred when it determined that his two prior robbery convictions were not
related and therefore qualified as two separate convictions under § 4B1.1(a)(3), and (2)
erred when it relied on only the presentence report (PSR) for both the crime of violence
determination and the conclusion that his prior convictions were not related.
       Bogard did not protest in the district court that his Mississippi robbery convictions
were not crimes of violence, so we review this issue for plain error. See United States v.
Green, 324 F.3d 375, 381 (5th Cir. 2003). The district court committed “clear” or
“obvious” error in Bogard’s case when it relied solely on the PSR in its crime of violence
determination. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (2006). Conceding
that he was convicted in Mississippi of robbery with a deadly weapon, Bogard focuses
his argument on the Mississippi robbery statute, MISS. CODE ANN. § 97-3-73 (West
1992), without addressing the Mississippi offense of robbery with a deadly weapon,
MISS. CODE ANN. § 97-3-79 (West 1992). As both statutes contain the basic elements of
the generic offense of robbery, see United States v. Santiesteban-Hernandez, 469 F.3d
376, 381 (5th Cir. 2006), the district court correctly determined that Bogard’s offenses
constituted crimes of violence. Consequently, Bogard has failed to establish plain error.
See United States v. Olano, 507 U.S. 725, 736 (1993).
       Bogard’s assertion that the district court erred when it relied solely on the PSR to
determine that his prior robbery convictions counted as two unrelated convictions for
crimes of violence is reviewed for plain error, because he did not object on this basis in
the district court. See Green, 324 F.3d at 381. Bogard did, however, contend in the
district court that his two prior robbery convictions were related and should be counted as
only one conviction. Although we review de novo the district court’s determination of
“relatedness” under § 4A1.2, a deferential standard of review is applied to the district
court’s determination whether an offender’s prior convictions were consolidated. See
Buford v. United States, 532 U.S. 59, 64 (2001); United States v. Moreno-Arredondo, 255


                                             2
                                         No. 06-51393

F.3d 198, 203 n.10 (5th Cir. 2001).
         Bogard’s conclusional assertions do not validate his insistence that the district
court erred in determining that he had two prior crime of violence convictions and
sentencing him as a career criminal. See Buford, 532 U.S. at 64; United States v.
Robinson, 187 F.3d 516, 519 (5th Cir. 1999); § 4B1.1(a); § 4B1.2(a); § 4A1.2 comment.
(n.3). Moreover, Bogard has failed to establish that the district court plainly erred when
it relied on the PSR to determine whether the offenses qualified as two prior offenses
under § 4B1.1(a)(3). See Olano, 507 U.S. at 731-37.
         Bogard, who is represented by counsel, has filed a pro se FED. R. APP. P. 28(j)
letter. By accepting the assistance of counsel, Bogard has waived his right to present pro
se arguments on direct appeal. See Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir.
1996).
         For the foregoing reasons, the judgment of the district court is AFFIRMED.




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