United States v. Brown

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30356

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

CALVIN BROWN, JR.,

Defendant-Appellant,

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana (98-CR-194-3-G) - - - - - - - - - - July 9, 2001

Before DAVIS, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:*

IT IS ORDERED that the petition for rehearing is granted for

the limited purpose of correcting apparently misleading language on

our part, specifically replacing the phrases “approximately 1½

kilograms” and “approximately 1.5 kilograms” —— which appear

several times on pages 19-21 of our panel opinion —— with the exact

number they were intended to represent, “1.6 kilograms.” This was,

in essence, a “rounding error.”

In discussing the quantity of drugs attributed to Defendants

* Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. Rule 47.5.4. Calvin Brown and Jesse L. Cage, we correctly concluded that, even

were we to grant Defendants’ contention that the package of cocaine

discovered in Cage’s vehicle when stopped on his journey from

Houston to New Orleans contained less than the two kilograms

claimed in the PSR (and adopted by the district court), the record

“supports an inference that the packages amounted to approximately

1½ kilograms because that was the amount Easterling, the apparent

prospective purchaser of these packages of cocaine, testified that

he was buying.”1 The phrase “approximately 1½ kilograms,” repeated

on three occasions in the form “approximately 1.5 kilograms” in the

subject pages of the opinion, was merely a shorthand approximation

for “1.6 kilograms,” the number correctly employed on page 22 of

our opinion and the amount of cocaine Easterling testified to

having purchased from Cage.

We now recognize that the difference between 1.5 and 1.6

kilograms is material to Brown’s challenge of the district court’s

attribution to him of between 2 and 3.5 kilograms of cocaine for

sentencing purposes. Because we realize that our rounding of the

figure “1.6" to “approximately 1½” and “approximately 1.5” could

cast doubt on our explanation why the district court did not

reversibly err in attributing between and 2 and 3.5 kilograms of

cocaine to Brown and sentencing him accordingly, we now replace

that misleading language with “1.6 kilograms.” Otherwise, our

1 Panel Opinion at 19.

2 decision stands.

It is so ORDERED.