United States v. Morales

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40061 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER MORALES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CR-314-4 --------------------

November 10, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Javier Morales pleaded guilty to one count of conspiracy to

possess with intent to distribute in excess of 1000 kilograms of

marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) &

(b)(1)(A). The district court sentenced Morales to 151 months’

imprisonment and a five-year term of supervised release. Morales

appeals his sentence.

Morales contends that this court must remand for sentencing

because the coconspirators’ statements relied on by the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-40061 -2-

court are not part of the record on appeal. The Government has

moved to supplement the record with the coconspirators statements

and the transcripts of Morales’s rearraigment and sentencing

hearings. The motion is GRANTED, and this argument is therefore

moot.

Morales argues that the district court did not make explicit

findings concerning Morales’s relevant conduct in the marijuana-

transportation conspiracy. Morales did not object to the

district court’s findings under Fed. R. Crim. P. 32, and thus

review is for plain error. United States v. Calverley, 37 F.3d

160, 162 (5th Cir. 1994) (en banc). Morales has failed to meet

his burden of showing that the district court committed a clear

or obvious error either in its explicit findings or the findings

implicit in its adoption of the presentence report. See United

States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994).

Morales also contends that the district court erred in

calculating the amount of marijuana attributable to him because

the information on which the district court relied, including the

presentence report, did not possess sufficient indicia of

reliability. This court reviews a district court’s factual

findings concerning the quantity of drugs implicated by the crime

for clear error. United States v. Davis, 76 F.3d 82, 84 (5th

Cir. 1996). Our review of the record reveals no clear error in

the district court’s finding that more than 3000 kilograms of

marijuana was attributable to Morales owing to the role he played

in the conspiracy.

AFFIRMED.