United States v. Harper ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-40824
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYFORD HARPER, also known as Earl Lacy,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 6:96-CR-16-2)
_________________________________________________________________
January 12, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Rayford Harper pleaded guilty to possession with intent to
distribute cocaine base, also known as crack. He appeals his
sentence, contending that the district court erred by (1) holding
him accountable for more than 450 grams of cocaine base; (2)
enhancing his sentence (two levels) for possession of firearms in
connection with a drug offense; (3) enhancing his sentence (four
levels) for being an organizer or leader of a criminal activity
*
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this opinion should not be published and is not precedent except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.
that involved five or more participants; and (4) enhancing his
sentence (two levels) for obstruction of justice.
Needless to say, we review the sentencing court’s factual
findings for clear error. United States v. Edwards, 65 F.3d 430,
432 (5th Cir. 1995). The district court did not clearly err by
sentencing Harper based on the quantity of drugs established in the
presentence report. See United States v. Mergerson, 4 F.3d 337,
345 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994); United
States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990) (holding that the
sentencing court is free to adopt the findings in the PSR, without
further inquiry, if the defendant offers no relevant affidavits or
other evidence in rebuttal).
Nor did the district court commit reversible error in
enhancing Harper’s sentence for possession of firearms in
connection with a drug offense. Harper was sentenced to the
statutory maximum of 240 months’ imprisonment; accordingly, finding
error and imposing a two-level reduction would place him in a
sentencing guideline range of 262 to 327 months, still well in
excess of the sentence received. See 21 U.S.C. § 841(b)(1)(C);
U.S.S.G. sentencing table. Accordingly, any error in this aspect
of the sentence was harmless. United States v. Branch, 91 F.3d
699, 743 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct.
1467 (1997).
2
Next, the district court did not clearly err in enhancing
Harper’s sentence for his role in the offense. Harper’s contention
concerning this extensive criminal activity is without merit; he
admits that, arguably, he could be held responsible for leading or
organizing two of his co-defendants. See United States v. Gross,
26 F.3d 552, 555 (5th Cir. 1994) (defendant need only direct the
activity of one other criminally responsible participant for
U.S.S.G. § 3B1.1 enhancement to apply).
Finally, the district court did not clearly err in enhancing
Harper’s sentence for obstruction of justice in regard to the
assault on, and threats against, a confidential informant. See
United States v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993);
U.S.S.G. § 3C1.1, cmt. 3(a).
AFFIRMED
3