United States v. Shavers

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-30907
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30907 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY WAYNE SHAVERS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-50016-1 -------------------- June 15, 2000

Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.

PER CURIAM:*

Billy Wayne Shavers appeals his sentence for being a

convicted felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). In particular, Shavers contends that 1) the

district court erred in relying upon the hearsay testimony of a

government witness to determine the number of weapons involved in

the offense pursuant to U.S.S.G. § 2K2.1(b)(1), and 2) the

district court clearly erred in denying an offense-level

reduction for acceptance of responsibility under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30907 -2-

§ 3E1.1. Shavers asserts that, had the district court not felt

bound by the guidelines to deny the reduction, the reduction

would have been granted. Because Shavers’ first argument is

raised for the first time on appeal, we review for plain error.

We have reviewed the record and briefs submitted by the

parties and find that the district court did not plainly err in

relying upon the government witness’ testimony and the PSR to

determine the number of weapons involved in the offense. See

Commentary to U.S.S.G. § 6A1.3; United States v. Puig-Infante, 19

F.3d 929, 943 (5th Cir. 1994); United States v. Angulo, 927 F.2d

202, 205 (5th Cir. 1991).

Although the district court may have believed it could not

award a reduction for acceptance of responsibility because of the

obstruction of justice assessment, there was no error since the

district court was advised of the extraordinary case exception at

sentencing, and this case is not otherwise extraordinary. See

United States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995);

United States v. Echegollen-Barrueta, 195 F.3d 786, 788 (5th Cir.

1999); United States v. Lujan-Sauceda, 187 F.3d 451, 452 (5th

Cir. 1999).

AFFIRMED.