United States v. Horton ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40576
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN LEDAL HORTON,
also known as Kevin,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-99-CR-10-11
--------------------
February 13, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Kelvin Ledal Horton appeals his sentence following a guilty-
plea conviction for conspiracy to possess with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), (b)(1)(B), (b)(1)(C) and 846.
Horton argues that the district court erred by adopting the
drug amounts contained in the Presentence Report (“PSR”) without
verifying the accuracy of the quantities. A district court’s
findings about the quantity of drugs upon which a sentence should
*
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that this opinion should not be published and is not precedent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. 00-40576
-2-
be based are factual findings, which this court reviews for clear
error. See United States v. Buchanan, 70 F.3d 818, 833 (5th Cir.
1996). As Horton did not present any rebuttal evidence to refute
the amounts, the district court properly adopted the PSR facts
without further inquiry. See United States v. Sherbak, 950 F.2d
1095, 1099-1100 (5th Cir. 1992). Therefore the district court
did not clearly err in determining the quantity of drugs
attributable to Horton.
Horton also contends, for the first time on appeal, that the
district court prevented him from presenting any rebuttal
evidence regarding his objection. This claim is reviewed for
plain error. See United States v. Angeles-Mascote, 206 F.3d 529,
530 (5th Cir. 2000). A review of the sentencing transcript
reveals, contrary to Horton’s assertion, that Horton declined the
district court’s opportunity to present additional arguments in
support of this objection following the presentation of initial
arguments by both parties. Accordingly, the district court did
not commit plain error. See id. The sentence is AFFIRMED.