United States v. Sloan

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 1999
• Docket: 98-41296
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41296 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM JUSTIN SLOAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:98-CR-9-1 -------------------- November 8, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

William Justin Sloan appeals the sentence imposed by the

district court following his guilty-plea conviction for

possession with intent to distribute marijuana and use of a

communication facility to facilitate a drug-trafficking crime.

Sloan argues that the district court erred in determining that he

was a career offender under § 4B1.1 of the United States

Sentencing Guidelines. He argues that two of his prior felony

drug convictions were “related” and therefore should have been

treated as one sentence under § 4A1.2(a)(2). Because the two

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41296 -2-

prior felony drug convictions were separated by an intervening

arrest, the prior sentences were not “related” for purposes of

§ 4A1.2 or § 4B1.1 of the Guidelines. See United States v.

Huskey, 137 F.3d 283, 285 (5th Cir. 1998). Further, the

application of § 4B1.1 does not violate the Ex Post Facto Clause.

See Spencer v. Texas, 385 U.S. 554, 559-60 (1967); Gryger v.

Burke, 334 U.S. 728, 732 (1948). Therefore, the district court

did not err in determining that Sloan was a career offender under

§ 4B1.1 of the Guidelines.

Sloan argues that the district court erred in determining

that there were 330 separate marijuana plants with root systems

for purposes of calculating the quantity of marijuana

attributable to Sloan. Because Sloan failed to present any

evidence to rebut the facts presented in the Presentence Report

(PSR) concerning the number of marijuana plants or the actual

weight of the marijuana, the district court was entitled to adopt

the facts in the PSR without further inquiry. See United States

v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998)(mere objections to

the PSR do not suffice as competent rebuttal evidence); United

States v. Alford, 142 F.3d 825, 832 (5th Cir.), cert. denied, 119

S. Ct. 514 (1998).

AFFIRMED.