United States v. Rodgers

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 21, 2001
• Docket: 01-40840
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40840 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SEVERN RODGERS, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CR-13-1 - - - - - - - - - - December 19, 2001 Before JOLLY, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Severn Rodgers, Jr., appeals the district court’s imposition

of a two-level increase pursuant to U.S.S.G. § 2K2.1(b)(3) for

possession of a sawed-off shotgun. He argues that self-

incriminating statements made to the probation officer, which

served as the basis of the sentence increase, were protected

under U.S.S.G. § 1B1.8(a) and should not have been used in

determining the applicable guideline range. Rodgers further

contends that the error was not harmless because the evidence,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40840 -2-

absent Rodgers’ self-incriminating statement, was not sufficient

to support a finding that he possessed a sawed-off shotgun.

Rodgers did not object to, nor does he challenge on appeal,

the presentence report’s (PSR) finding that a sawed-off shotgun

was discovered on the front seat of a stolen vehicle that he was

driving. Consequently, there were indicia of reliability in the

PSR that prior to the cooperation agreement the probation officer

knew that Rodgers possessed a sawed-off shotgun. See United

States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995)(holding that

§ 1B1.8 was not violated because probation officer relied on

information independent of that presented by defendant); United

States v. Marsh, 963 F.2d 72, 74-75 (5th Cir. 1992); United

States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991). Thus,

the provisions of § 1B1.8(a) do not apply to restrict the

district court’s use of the previously known information

regarding the sawed-off shotgun when calculating the offense

level. See § 1B1.8(b)(1). Accordingly, Rodgers’ sentence is

AFFIRMED.