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

                                                 FILED
                                                                           January 4, 2010
                                     No. 09-10220
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CORY MITCHELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-147-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cory Mitchell appeals the 170-month sentence imposed following his guilty
plea   conviction     of   conspiracy      to   distribute    50    grams     or   more      of
methamphetamine.           Mitchell argues that the district court erroneously
calculated his base offense level. He argues that the district court’s use of the
definition of “offense” provided by U.S.S.G. § 1B1.1, comment. (n.1(H)) was
erroneous and resulted in an artificially high guidelines range. He posits that
“offense” refers to the “offense of conviction,” and argues that, as such, it

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10220

restricts a sentencing court’s calculation of the base offense level to consideration
of only the specific conduct, or admitted facts, underlying the conviction.
       To the extent that Mitchell is arguing that the district court’s sentencing
discretion was curtailed by the factual stipulation he entered, he is incorrect.
The Guidelines specifically provide that a district court is not bound by the
factual stipulations made by the parties, “but may with the aid of the
presentence report, determine the facts relevant to sentencing.” 1 This remains
true even though the Guidelines are now advisory.2
       To the extent that Mitchell is arguing that the district is prohibited from
using other offense conduct to determine his base offense level, his argument is
likewise unavailing. “The guidelines provide that, in determining the amount
of drugs to be attributed for a base offense level, the district court may consider
other offenses than those underlying the offense of conviction as long as the
offenses constitute relevant conduct as defined in the guidelines.”3
       Mitchell does not challenge the validity of the drug amounts set forth in
the PSR or the district court’s calculation of the amount of drugs for which he
should be held responsible. Rather, he challenges the district court’s authority
to consider the information relied upon.               For the reasons set forth above,
Mitchell’s arguments are without merit.
       The district court committed no procedural error, and Mitchell has failed
to   demonstrate        that    his   within-guidelines       sentence       is   substantively
unreasonable. Accordingly, the judgment is AFFIRMED.




       1
        U.S.S.G. § 6B1.4(d), p.s.; see also United States v. Garcia, 907 F.2d 324, 326–27 (5th
Cir. 1990).
       2
           See United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006).
       3
           United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir. 2007).

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