United States v. Powell

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 2003
• Docket: 03-30085
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 03-30085 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL POWELL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-50111-9 - - - - - - - - - -

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Paul Powell appeals the sentence imposed following his

guilty-plea conviction for conspiracy to possess with intent to

distribute MDMA, which is commonly known as Ecstasy. Powell

first argues that the district court erred by attributing to him

drugs that were not a part of the conspiracy. He also contends

that the district court erred by denying an adjustment, pursuant

to U.S.S.G. § 3B1.2, for a minor or minimal role in the offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-30085 -2-

The Pre-Sentence Report (PSR) contained information that

Powell and a coconspirator purchased 800 Ecstasy tablets in The

Netherlands. Because Powell failed to rebut this fact, the

district court was free to adopt it without further inquiry.

See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).

The Government presented unchallenged testimony to the

effect that Powell assisted in counting 3000 Ecstasy tablets

transported from California to Texas, and that the conspirators

later made efforts to sell those pills. Powell admits that he

traveled to Florida to sell a portion of these tablets. In view

of the above, Powell has failed to show that the district court’s

attribution of 3800 Ecstasy tablets to him was clearly erroneous.

See United States v. Shipley, 963 F.2d 56, 58 (5th Cir. 1992);

U.S.S.G. § 1B1.3(a)(1)(B), comment. (n.2).

Finally, given the unrebutted evidence of Powell’s

participation in the acquisition, transportation, and

distribution of Ecstasy tablets, the district court’s

determination that Powell did not play a minor role in the

offense was not clearly erroneous. See United States v. Nevarez-

Arreola, 885 F.2d 243, 245 (5th Cir. 1989); United States v.

Deavours, 219 F.3d 400, 404 (5th Cir. 2000). Accordingly, the

judgment of the district court is AFFIRMED.