United States v. Rodgers ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40840
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEVERN RODGERS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:00-CR-13-1
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December 19, 2001
Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Severn Rodgers, Jr., appeals the district court’s imposition
of a two-level increase pursuant to U.S.S.G. § 2K2.1(b)(3) for
possession of a sawed-off shotgun. He argues that self-
incriminating statements made to the probation officer, which
served as the basis of the sentence increase, were protected
under U.S.S.G. § 1B1.8(a) and should not have been used in
determining the applicable guideline range. Rodgers further
contends that the error was not harmless because the evidence,
*
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that this opinion should not be published and is not precedent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. 01-40840
-2-
absent Rodgers’ self-incriminating statement, was not sufficient
to support a finding that he possessed a sawed-off shotgun.
Rodgers did not object to, nor does he challenge on appeal,
the presentence report’s (PSR) finding that a sawed-off shotgun
was discovered on the front seat of a stolen vehicle that he was
driving. Consequently, there were indicia of reliability in the
PSR that prior to the cooperation agreement the probation officer
knew that Rodgers possessed a sawed-off shotgun. See United
States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995)(holding that
§ 1B1.8 was not violated because probation officer relied on
information independent of that presented by defendant); United
States v. Marsh, 963 F.2d 72, 74-75 (5th Cir. 1992); United
States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991). Thus,
the provisions of § 1B1.8(a) do not apply to restrict the
district court’s use of the previously known information
regarding the sawed-off shotgun when calculating the offense
level. See § 1B1.8(b)(1). Accordingly, Rodgers’ sentence is
AFFIRMED.