     Case: 18-10748      Document: 00514936761         Page: 1    Date Filed: 04/30/2019




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

                                                                               FILED
                                    No. 18-10748
                                                                            April 30, 2019
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CHARLES EARL DAVIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-10-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Charles Earl Davis appeals the sentence imposed following his guilty
plea conviction for possession with intent to distribute a mixture and substance
containing methamphetamine and being a felon in possession of a firearm. He
argues that the district court erred by not ordering his sentence to run
concurrently with any sentence imposed for two pending state charges arising
from a prior arrest, which he asserts are relevant conduct to his instant offense.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10748    Document: 00514936761       Page: 2   Date Filed: 04/30/2019


                                 No. 18-10748

      Davis’s unpreserved arguments challenging the consecutiveness of his
sentence under U.S.S.G. § 5G1.3 raise fact questions pertaining to whether the
conduct underlying his previous arrest was sufficiently connected or related to
the underlying offense to qualify as relevant conduct under U.S.S.G. § 1B1.3.
“Questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam); see also United States v.
Vital, 68 F.3d 114, 118-19 (5th Cir. 1995).
      Further, Davis’s argument that United States v. Olano, 507 U.S. 725
(1993), and United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc),
abrogated on other grounds by Johnson v. United States, 520 U.S. 461, 468
(1997), which addressed legal error, dictate that we not follow Lopez is
unpersuasive. He effectively asks us to overturn this court’s precedent, which
we may not do. See United States v. Walker, 302 F.3d 322, 324-25 (5th Cir.
2002). To the extent Davis relies on decisions that conflict with Lopez, we
follow Lopez because it is the earlier line of precedent. See United States v.
Wheeler, 322 F.3d 823, 828 n.1 (5th Cir. 2003).
      Accordingly, the judgment of the district court is AFFIRMED.




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