United States v. Ballard

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-41203
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41203 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JIMMIE C. BALLARD,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CR-117-ALL -------------------- June 14, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jimmie Ballard pleaded guilty to check fraud and to being

a felon in possession of a firearm. He appeals the district

court’s refusal to grant him an offense level reduction pursuant to

U.S. Sentencing Guidelines § 2K2.1(b)(2), which allows a reduction

when the defendant’s possession of the firearms is solely for

sporting or collection purposes. Ballard argues that the district

court erred when it stated that Ballard had denied owning handguns

at the guilty-plea hearing; that the probation officer gave

inconsistent reasons for denying the reduction, and his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41203 -2-

recommendation was thus unreliable; and that the district court did

not consider all the evidence and Ballard’s arguments and did not

articulate its reasons when denying the objection.

Our review of the record reveals that the district court

considered the evidence and Ballard’s argument when making its

§ 2K2.1(b)(2) determination and that the district court articulated

its reasons for denying the sentencing reduction. See United

States v. Melton, 930 F.2d 1096, 1099 (5th Cir. 1991). The

probation officer’s recommendation in his Second Addendum to the

Presentence Report was supported by the record, and it provided

sufficient indicia of reliability such that the district court’s

denial of the § 2K2.1(b)(2) reduction was not clearly erroneous.

See United States v. Brown, 54 F.3d 234, 242 (5th Cir. 1995);

United States v. Shell, 972 F.2d 548, 552-53 (5th Cir. 1992).

Ballard’s challenges to the district court’s findings are without

merit.

Ballard also notes that there was a stipulation by the

Government and Ballard in the plea agreement that he possessed the

firearms for collection purposes, and he argues in his reply brief

that the Government breached the plea agreement by introducing

evidence in the district court and by presenting arguments on

appeal indicating another purpose for the possession of the guns.

We need not review whether the Government’s conduct in the district

court violated the plea agreement because Ballard did not raise

this argument until his reply brief. See United States v. Jackson,

50 F.3d 1335, 1340 n.7 (5th Cir. 1995). Nevertheless, this

contention lacks merit. On appeal, the Government simply argues No. 99-41203 -3-

that the district court’s determination was sufficiently supported

by the record. A review of the plea agreement, which stated that

the stipulation would not be binding on the district court,

indicates that parties intended the stipulation to apply to

arguments presented to the district court and not that the

Government would be prevented from defending the district court’s

decision in this court. The Government has not breached the plea

agreement.

AFFIRMED.