United States v. Hacker

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 7, 2000
• Docket: 99-50964
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50964

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

MICHAEL HACKER, Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas USDC No. SA-98-CR-60-9

November 6, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Michael Hacker appeals his sentencing after having pled guilty

to conspiracy to possess with intent to distribute marijuana. He

argues that the district court clearly erred (1) in its

determination of drug quantity for purposes of relevant conduct;

(2) in denying a downward adjustment in his offense level for

acceptance of responsibility; and (3) by assigning one criminal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. history point to his conviction for driving without insurance. Upon

review of the records, briefings, and applicable case law, we

conclude that the district court committed no reversible error.

Hacker failed to produce evidence sufficient to rebut both the

PSR's estimate of drug quantity and the testimony of the case

agent, upon which the PSR estimate was based. Hacker's conclusory

assertion that he made only 15 deliveries of marijuana, averaging

only 40 pounds per delivery, is insufficient to establish clear

error.1

In addition, Hacker tested positive for marijuana use on two

separate occasions while on pretrial release. Even if these

positive tests were based on Hacker's addiction to marijuana, they

support the district court's decision to deny him the acceptance-

of-responsibility adjustment.2

Finally, because the misdemeanor conviction resulted in a 60-

day sentence of imprisonment and one year of probation, the

district court did not err in applying it to a determination of

Hacker's criminal history score. Indeed, Hacker's conviction for

driving without insurance is "similar" to "[d]riving without a

1 See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990). 2 See United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d 224, 227-28 (5th Cir. 1996).

2 license," for purposes of U.S.S.G. § 4A1.2(c)(1).3 In light of the

preceding, Hacker's conviction and sentence are AFFIRMED.

AFFIRMED.

3 See United States v. Moore, 997 F.2d 30, 34 (5th Cir. 1993); United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991).