United States v. Morrison

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20121 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES V. MORRISON,

Defendant-Appellant.

_____________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CR-H-95-178-2) _____________________________________________________________ October 23, 1996 Before KING, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

James V. Morrison argues that the district court erred in

determining the drug quantity attributable to him under the

sentencing guidelines. He also argues for the first time on

appeal that the district court committed plain error in

determining that he had the burden of proving that he did not

have the intent or was not reasonably capable of delivering at

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. least five kilograms but less than fifteen kilograms of cocaine

to the confidential informant.

We have reviewed the applicable sentencing guidelines and

have determined that the district court did not commit plain

error in determining that Morrison had the burden of proving that

he did not intend or did not have the capacity to deliver at

least five kilograms of cocaine. See United States v. Calverley,

37 F.3d 160, 162-64, (5th Cir. 1994) (en banc), cert. denied, 115

S. Ct. 1266 (1995); U.S.S.G. § 2D1.1, comment. (n. 12).

We have further reviewed the record, including the

presentence report and the transcript of the sentencing hearing,

and find that the district court’s determination that Morrison

was accountable for at least five kilograms of cocaine was not

clearly erroneous. United States v. Bermea, 30 F.3d 1539, 1575

(5th Cir. 1994), cert. denied, 115 S. Ct. 1113, 1825 (1995).

Morrison also argues that the district court erred in

increasing his offense level for obstruction of justice. The

record supports the district court’s determination that Morrison

provided materially false testimony at the sentencing hearing.

Thus, the district court did not clearly err in applying the

upward adjustment to Morrison’s offense level. See United States

v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); U.S.S.G. § 3C1.1.

AFFIRMED.