UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 01-50097 & 01-50098 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MEJIA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-00-CR-228-1-HG) _________________________________________________________________ October 29, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The issues raised by appellant Mejia, who pleaded guilty

to drug offenses, are the validity of the waiver of appeal in his

plea agreement and the application of the career-offender provision

of the sentencing guidelines. U.S.S.G. § 4A1.2, comment (n.3).

Finding no error by the district court, we affirm.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. First, this case is virtually indistinguishable from

United States v. Robinson,

(5th Cir. 1999), in regard

to the validity of Mejia’s waiver of appeal. As a result, the

waiver will not be enforced.

Second, although Mejia asserts that his two prior

convictions for delivery of cocaine to an undercover officer were

part of a “common scheme or plan”, and thus related offenses that

could not be separated for purposes of determining career offender

status, we find the district court’s contrary conclusion more in

accord with Fifth Circuit precedent. In two previous cases, this

court held that multiple drug sales, spread over periods ranging

from a few hours to nine days, some involving the same undercover

law officers, were nevertheless not part of a “common scheme or

plan” under § 4A1.2. See United States v. Garcia,

(5th Cir. 1992). United States v. Ford,

(5th Cir. 1993). As the court noted in Ford, where each sale was

separated by hours, if not days, “The fact that the buyer was the

same did not make the sales ‘related’ any more than if Ford made

four separate trips to the same H.E.B. in one week to buy

groceries. . .”

.

Our decision in

on which Mejia relies,

held that two drug sales were part of a common scheme or plan where

the defendant “planned” the commission of the second sale while

committing the first crime, the second offense was “not a spur of

the moment occurrence,” and the second offense “necessarily

2 entailed the commission of the first offense”. Robinson carefully

distinguishes Garcia and Ford. Here, no such distinction is

possible. There is no evidence that Mejia gave his phone number to

the agent during the first sale in order to set up a later sale.

Instead, Mejia was hoping to be called for legitimate landscaping

employment. And the second sale was accomplished in a different

manner than the first. Were we to accept Mejia’s argument,

Robinson would virtually and impermissibly overrule Garcia and

Ford. But as Ford says, “there was no common scheme or plan --

simply convenience and experience.”

.

The sentence imposed by the district court is AFFIRMED.

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