United States v. Brown ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40003
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CR-36-2
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Jeffrey Brown appeals his sentence after pleading guilty to
distributing and possessing with intent to distribute
methamphetamine. Brown argues that the district court erred in
assessing a three-level enhancement under U.S.S.G. § 3B1.1(b)
because his criminal activity did not involve five or more
participants at any given time. Brown maintains that, although
his indictment included a drug-conspiracy charge, the substantive
drug offense to which he ultimately pleaded guilty did not
involve five or more participants. Brown also maintains that the
*
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that this opinion should not be published and is not precedent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. 00-40003
-2-
Government failed to prove by a preponderance of the evidence
that the enhancement was warranted.
Fifth Circuit precedent and the commentary to the sentencing
guidelines both make clear that a sentencing court, rather than
being limited to the four corners of the offense of conviction,
may consider relevant conduct in determining a defendant’s role
in the offense. See United States v. Patino-Cardenas, 85 F.3d
1133, 1137 (5th Cir. 1996); United States v. Mir, 919 F.2d 940,
945-46 (5th Cir. 1990); U.S.S.G. Ch. 3, Pt. B, intro. comment.
Because Brown’s offense conduct and relevant conduct involved at
least five participants, the district court did not err in
assessing a three-level enhancement under § 3B1.1(b). See United
States v. Ocana, 204 F.3d 585, 591-92 (5th Cir.), cert. denied,
121 S. Ct. 192 (2000); United States v. Eastland, 989 F.2d 760,
768-69 (5th Cir. 1993). To the extent Brown challenges the
sufficiency of the evidence supporting the enhancement, his
argument is unavailing. See United States v. Fitzgerald, 89 F.3d
218, 223 (5th Cir. 1996)(stating that a presentence report
generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge when making
factual determinations); Mir, 919 F.2d at 943 (stating that when
a defendant fails to present any rebuttal evidence to refute
facts in the presentence report, the district court is free to
adopt those facts without further inquiry).
AFFIRMED.