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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-10438
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER TREVINO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
December 22, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Trevino, having pleaded guilty to participating
in a conspiracy to distribute cocaine from 1993 through July 1996
and to a specific instance of possession with intent to distribute
cocaine on May 22, 1996, contests his sentence under the
Guidelines. He contends that he was erroneously given an
additional criminal history point, pursuant to U.S.S.G. § 4A1.1(e),
based on the court's finding that his offense was committed within
two years from his release from custody on a prior relevant

sentence. Trevino contends that "the instant offense" and all
relevant conduct for sentencing purposes occurred on May 22, 1996,
more than two years after his release from imprisonment. We
disagree and AFFIRM the sentence issued by the trial court.
Trevino's argument hinges on the assumption that he was
not linked to the conspiracy count, to which he pled guilty, prior
to the specific offense committed on May 22, 1996. He acknowledges
that under the pertinent guideline, an additional criminal history
point may be added when the defendant "committed any part of the
instant offense (i.e., any relevant conduct) less than two years
following release from confinement." U.S.S.G. § 4A1.1(e), comment.
(n.5). Relevant conduct, he contends, does not include
conspiratorial activities before May 22, 1996.
Trevino's
argument
contradicts
his
guilty
plea
proceedings. First, the conspiracy count to which he pled guilty
stated that he and others conspired to possess with intent to
distribute and distributed five kilograms or more of cocaine
"[f]rom or about, 1993 and continuing through on or about July,
1996 . . . ." Second, the factual resume, signed and agreed to by
both Trevino and his attorney, states:
During the time periods alleged in the Superseding Indictment,
the defendant . . . and other conspirators . . . did
unlawfully conspire . . . to commit violations of the federal
controlled substances laws. Specifically during the time
period alleged in the Superseding Indictment, Trevino and
other co-conspirators agreed and conspired together to
distribute and possess with intent to distribute five (5)
kilograms or more of a mixture and substance containing a
detectable amount of cocaine.
2

By entering his plea of guilty, Trevino admitted all elements of
the charge contained in this conspiracy count of the indictment.
See McCarthy v. United States, 394 U.S. 459 (1969). In fact, he
admitted his involvement in the conspiracy beginning in 1993 and
continuing through July 1996. Since this involvement falls within
the two-year period discussed in U.S.S.G. § 4A1.1(e), the district
court properly added the criminal history point. See United States
v. Alexander, 53 F.3d 888, 892 (8th Cir. 1995) (holding that
engaging in a conspiracy within two years of release from prison
merits the application of U.S.S.G. § 4A1.1(e)).
AFFIRMED.
3