United States v. Harper

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 20, 1998
• Docket: 20-90003
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 97-40824 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYFORD HARPER, also known as Earl Lacy,

Defendant-Appellant.

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Appeal from the United States District Court for the Eastern District of Texas (USDC No. 6:96-CR-16-2) _________________________________________________________________

January 12, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Rayford Harper pleaded guilty to possession with intent to

distribute cocaine base, also known as crack. He appeals his

sentence, contending that the district court erred by (1) holding

him accountable for more than 450 grams of cocaine base; (2)

enhancing his sentence (two levels) for possession of firearms in

connection with a drug offense; (3) enhancing his sentence (four

levels) for being an organizer or leader of a criminal activity

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. that involved five or more participants; and (4) enhancing his

sentence (two levels) for obstruction of justice.

Needless to say, we review the sentencing court’s factual

findings for clear error. United States v. Edwards, 65 F.3d 430,

432 (5th Cir. 1995). The district court did not clearly err by

sentencing Harper based on the quantity of drugs established in the

presentence report. See United States v. Mergerson, 4 F.3d 337,

345 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994); United

States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990) (holding that the

sentencing court is free to adopt the findings in the PSR, without

further inquiry, if the defendant offers no relevant affidavits or

other evidence in rebuttal).

Nor did the district court commit reversible error in

enhancing Harper’s sentence for possession of firearms in

connection with a drug offense. Harper was sentenced to the

statutory maximum of 240 months’ imprisonment; accordingly, finding

error and imposing a two-level reduction would place him in a

sentencing guideline range of 262 to 327 months, still well in

excess of the sentence received. See 21 U.S.C. § 841(b)(1)(C);

U.S.S.G. sentencing table. Accordingly, any error in this aspect

of the sentence was harmless. United States v. Branch, 91 F.3d

699, 743 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct.

1467 (1997).

2 Next, the district court did not clearly err in enhancing

Harper’s sentence for his role in the offense. Harper’s contention

concerning this extensive criminal activity is without merit; he

admits that, arguably, he could be held responsible for leading or

organizing two of his co-defendants. See United States v. Gross,

26 F.3d 552, 555 (5th Cir. 1994) (defendant need only direct the

activity of one other criminally responsible participant for

U.S.S.G. § 3B1.1 enhancement to apply).

Finally, the district court did not clearly err in enhancing

Harper’s sentence for obstruction of justice in regard to the

assault on, and threats against, a confidential informant. See

United States v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993);

U.S.S.G. § 3C1.1, cmt. 3(a).

AFFIRMED