     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,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.




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