United States v. Walker

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 7, 2003
• Docket: 02-40991
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40991 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN DEWAYNE WALKER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CR-55-1 -------------------- February 6, 2003

Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Stephen DeWayne Walker appeals his sentence following his

guilty-plea conviction for possession with intent to distribute

and distribution of cocaine base, in violation of 21 U.S.C.

§ 841(a). He argues that the district court erred in relying on

the Presentence Report (PSR) to determine drug quantity and that

the Government breached the plea agreement at sentencing by

supporting the district court’s drug quantity determination.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40991 -2-

Because Walker raises these arguments for the first time on

appeal, this court’s review is for plain error only. See FED.

R. CRIM. P. 52(b); United States v. Calverley, 37 F.3d 160, 162-

64 (5th Cir. 1994)(en banc), abrogated in part, Johnson v. United

States, 520 U.S. 461 (1997).

A PSR generally bears sufficient indicia of reliability to

be considered as evidence by the sentencing judge when making

factual determinations required by the Sentencing Guidelines.

United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).

Walker fails to demonstrate that the information in the PSR

regarding the amount of drugs involved was “materially untrue,

inaccurate or unreliable.” Id. Furthermore, Walker’s reliance

on United States v. Taylor, 277 F.3d 721 (5th Cir. 2001), and

United States v. Shacklett, 921 F.2d 580 (5th Cir. 1991), is

misplaced as the plea agreements in those cases contained “use

immunity” provisions. There is no such provision in Walker’s

plea agreement.

In determining whether the Government has breached a plea

agreement, the court must determine whether the Government’s

conduct is consistent with the parties’ reasonable understanding

of the agreement. United States v. Chagra, 957 F.2d 192, 194

(5th Cir. 1992). Contrary to Walker’s contentions, the plea

agreement did not include terms concerning the quantity of drugs

for which Walker would be held accountable or the probable

sentence he would receive. Moreover, Walker’s understanding that No. 02-40991 -3-

his sentence would be based on the amount of drugs alleged in the

information was not reasonable in light of the plea agreement’s

provisions regarding his sentencing. See id. at 195.

Based on the foregoing, Walker fails to demonstrate error,

plain or otherwise. See Calverley, 37 F.3d at 162-64.

Accordingly, the district court’s judgment is AFFIRMED.