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United States v. Hadder ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60297
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OTTIS RAY HADDER
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:99-CR-51-1
--------------------
September 4, 2001
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Ottis Ray Hadder appeals his sentence following his guilty-
plea convictions for conspiracy to manufacture methamphetamine
and using and carrying a firearm during a drug-trafficking crime.
He argues (1) that the district court erroneously assessed a two-
level enhancement under U.S.S.G. § 3B1.1(c) based on his
leadership role, (2) that the district court erred in its drug-
quantity determination by holding him responsible for an
unmanufactured quantity of methamphetamine, and (3) that the
*
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that this opinion should not be published and is not precedent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. 00-60297
-2-
district court erred in denying him a downward adjustment for
acceptance of responsibility.
Hadder’s first two issues are reviewed for plain error only
because he did not raise them in the district court.    See United
States v. Vital,
    68 F.3d 114
    , 118-19 (5th Cir. 1995).      Although
he objected to the presentence report’s description of his
offense conduct, he did not raise the two issues he now urges on
appeal.   Both of those issues involve factual findings.     See
United States v. Navarro,
    169 F.3d 228
    , 234 (5th Cir. 1999);
United States v. Davis,
    76 F.3d 82
    , 84 (5th Cir. 1996).
“[Q]uestions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain
error.”
    Vital, 68 F.3d at 119 
    (internal quotations and citations
omitted).   Accordingly, Hadder is not entitled to appellate
relief on his first two issues.   See United States v. Fierro,
    38 F.3d 761
    , 773 n.4, 774 (5th Cir. 1994); United States v.
Sparks,
    2 F.3d 574
    , 589 (5th Cir. 1993).
Within the context of his second issue, Hadder states,
without further argument or development, that Apprendi v. New
Jersey,
    530 U.S. 466 
    (2000) makes it constitutionally
impermissible to establish drug quantity under a mere
preponderance-of-the-evidence standard.    No Apprendi error is
present in this case given that Hadder’s conviction for
conspiracy to manufacture methamphetamine resulted in a 144-month
term of imprisonment and a 10-year term of supervised release.
Both of those terms were authorized by 21 U.S.C. § 841(b)(1)(C),
which is the baseline statutory penalty for any quantity of
No. 00-60297
-3-
methamphetamine.   See United States v. Doggett,
    230 F.3d 160
    ,
165-66 (5th Cir. 2000), cert. denied,
    121 S. Ct. 1152 
    (2001); see
also 21 U.S.C. § 841(b)(1)(C)(authorizing imprisonment term “of
not more than 30 years” and supervised-release term “of at least
6 years” for a defendant, like Hadder, who has a prior conviction
for a felony drug offense).
Hadder’s third issue is also unavailing.   Given his repeated
denials of guilt, the district court did not err in denying him a
downward adjustment for acceptance of responsibility.     See United
States v. Dean,
    59 F.3d 1479
    , 1496 (5th Cir. 1995).     Accordingly,
the district court’s judgment is AFFIRMED.