United States v. Bracken

1 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30376
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMARVIN DWIGHT BRACKEN, also known as Pudgy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-60004-1
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November 26, 2002
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Demarvin Dewight Bracken (“Bracken”) appeals the sentence
imposed following his guilty-plea conviction for conspiracy to
distribute cocaine. Bracken asserts for the first time on appeal
that the district court erred in determining the quantity of crack
cocaine for which he was sentenced because the drug quantity
included amounts that were distributed prior to Bracken joining the
conspiracy.

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2
After adopting the determination in the presentence report
(“PSR”) that Bracken joined the conspiracy in “approximately” June
1995, it was not clear error for the district court to include as
relevant conduct drugs distributed in late May 1995. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
Moreover, Bracken offered no evidence to rebut the PSR’s finding
that he was responsible for conspiring to distribute at least 1.5
kilograms of crack cocaine, the threshold amount which established
his base offense level pursuant to U.S.S.G. § 2D1.1(c)(1). Because
no rebuttal evidence was offered, the district court was free to
adopt the findings in the PSR with respect to drug quantity. See
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). Bracken
failed to meet his burden of showing that the information contained
in the PSR was materially untrue. See United States v. Davis, 76
F.3d 82, 84 (5th Cir. 1996).
AFFIRMED.

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