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92-7737Court of Appeals for the Fifth Circuit25.03.2004

Gesamter Gesetzestext

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-7737
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN B. BARBER,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. CR-G90-43-S
- - - - - - - - - -
June 24, 1993
Before POLITZ, Chief Judge, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Calvin Barber contends that the district court erred in
determining that he committed a grade A violation of supervised
release as defined by U.S.S.G. § 7B1.1, p.s. He maintains that
he committed only a grade B violation.
Determinations by a district court relative to sentencing
matters are findings of fact subject to the "clearly erroneous"
standard of review. United States v. Alfaro, 919 F.2d 962, 964
(5th Cir. 1990).

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No. 92-7737
-2-
At the revocation hearing, the probation officer assigned to
the case testified that on August 1, 1991, Barber was arrested in
possession of approximately 500 grams of cocaine while traveling
on a bus. Law enforcement officials had reason to believe that
drugs were on the bus. Barber was found in possession of a claim
ticket to the piece of luggage that contained the cocaine.
Barber presented no evidence to rebut that testimony.
U.S.S.G. § 7B1.1(a) (1), p.s., defines a grade A violation
of supervised release as, inter alia, "conduct constituting. . .
a controlled substance offense. . . ." A grade B violation is
defined as "conduct constituting any other federal, state, or
local offense punishable by a term of imprisonment exceeding one
year." U.S.S.G. § 7B1.1, p.s., comment. (n.1) states that "[t]he
grade of violation does not depend on the conduct that is the
subject of criminal charges or of which the defendant is
convicted in a criminal proceeding. Rather, the grade of
violation is to be based on the defendant's actual conduct."
Based on the probation officer's uncontroverted testimony,
Barber's actual conduct included possessing a baggage claim
ticket to a piece of luggage which contained over 500 grams of
cocaine. Possession of cocaine is a drug-related offense, and
thus the district court did not commit clear error in finding
that Barber committed a grade A violation.
AFFIRMED.

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