United States v. Doublin ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30073
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY W. DOUBLIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
(95-CR-30024-5)
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October 30, 2000
Before HIGGINBOTHAM, WIENER, AND BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Larry W. Doublin argues that the district
court abused its discretion when it failed to suppress evidence of
a taped telephone conversation or when it failed to continue the
trial to permit Doublin to rebut the testimony that identified his
voice on the tape recording. Doublin argues that the government
violated the discovery rules by failing to provide him with
*
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that this opinion should not be published and is not precedent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.
complete and correct information about the taped conversation at
least one week before trial.
The record does not reflect that the government intentionally
concealed the contents of the taped conversation from the defense.
The government afforded defense counsel an opportunity to review
the tape recordings nine months prior to trial, and provided
defense counsel with information as to the specific contents of the
tapes a short time after receiving that information.
The prejudice arising from the admission of the tape was
minimal in light of the other incriminating evidence adduced at
trial. Further, the jury heard the tape and Doublin’s testimony
that it was not his voice on the tape; the jury could and did draw
its own conclusion as to authenticity. As Doublin’s counsel did
not request a delay or continuance, he cannot complain that the
district court did not continue the trial. The district court did
not abuse its discretion in denying Doublin’s request to suppress
the taped conversation. See United States v. Katz, 178 F.3d 368,
372 (5th Cir. 1999).
Doublin also argues that the district court erred in failing
to make specific factual findings with respect to the quantity of
drugs distributed within the conspiracy that were foreseeable by
Doublin. The district court adopted the findings contained in the
presentence report (PSR), which were supported by detailed facts
and were not rebutted by Doublin through either relevant affidavits
or other evidence. The district court’s adoption of the findings
in the PSR satisfy the requirement of Fed. R. Crim. P. 32(c)(1)
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that controverted factual matters be resolved at sentencing. See
United States v. Sherbak, 950 F.2d 1095, 1098 (5th Cir. 1992).
Doublin further argues that the district court erred in
enhancing his offense level for obstruction of justice based on his
allegedly perjured testimony at trial. The district court
specifically determined that Doublin’s false testimony satisfied
the factual predicate for perjury and pointed out particular
testimony that the court relied on in making its finding of
perjury. The district court’s imposition of the enhancement is
supported by the record and is not clearly erroneous. See United
States v. Cabral-Castillo, 35 F.3d 182, 186 (5th Cir. 1994).
As Doublin failed to argue in the district court or in his
brief that he was sentenced above the statutory maximum permitted
by the indictment filed against him, the government’s motion to
file a supplemental brief addressing that issue in light of
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), is denied as moot.
AFFIRMED; MOTION DENIED.
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