United States v. Melbert ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30165
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR L. MELBERT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-20007-7
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June 3, 1999
Before KING, Chief Judge, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Victor L. Melbert appeals his conviction and sentence for
conspiracy to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 846, and three counts of distributing
cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal
Melbert argues that the district court erred because it
(1) denied his request to exclude two prospective jurors for
cause; (2) based his sentence on information about cocaine sales
that lacked sufficient indicia of reliability; and (3) based his
*
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that this opinion should not be published and is not precedent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.
sentence on crack cocaine rather than powder cocaine.
Melbert did not object to the district court’s denial of his
motion to exclude prospective jurors for cause. Consequently, we
review for plain error. See United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994). The challenged jurors indicated
that they understood the rules of law as described by the court
and that they could be impartial in rendering a verdict. Melbert
used his peremptory strikes to exclude both of the challenged
jurors. Melbert has failed to demonstrate that the prospective
jurors’ views would substantially impair their sworn duties as
jurors. See Wainwright v. Witt, 469 U.S. 412, 423 (1985).
Consequently, the district court did not commit any error when it
denied Melbert’s challenge.
Melbert next argues that the district court improperly
relied on ten cocaine sales, allegedly made by Melbert to James
Brunson, when it calculated his sentence. Information about the
sales was included in the presentence report (PSR). The district
court found that the information bore sufficient indicia of
reliability. See U.S.S.G. § 6A1.3(a) (the sentencing court may
consider any relevant information, without regard to its
admissibility, as long as the court concludes that it has
sufficient indicia of reliability); see also United States v.
Alfaro, 919 F.2d 962, 966 (5th Cir. 1990) (holding that a PSR
generally bears sufficient indicia of reliability).
At the sentencing hearing, the probation officer provided
an explanation of how the information in the PSR was
corroborated. See United States v. Narviz-Guerra, 148 F.3d 530,
No. 98-30165
-3-
537 (5th Cir. 1998). The information regarding Melbert’s cocaine
sales to Brunson is not “mere allegation” or “bald conclusionary
statements” as argued by Melbert. As a result, the district
court did not err in finding that the information in the PSR
contained sufficient indicia of reliability.
Finally, Melbert contends that the Government failed to
prove by a preponderance of evidence that the substance he was
distributing was crack cocaine rather than some other form of
cocaine. See United States v. Lombardi, 138 F.3d 559, 562 (5th
Cir. 1998) (holding that the burden of proof at sentencing is a
preponderance of the evidence). As this issue was not raised
before the district court, it is reviewed for plain error.
United States v. Brewster, 137 F.3d 853, 856 (5th Cir.), cert.
denied, 119 S. Ct. 247 (1998).
There is ample evidence indicating that the substance was
crack cocaine, including testimony of seven witnesses who all
specified that Melbert sold them crack cocaine. Moreover,
Melbert has not produced any evidence indicating that the
substance was something other than crack cocaine. The court did
not err in its factual conclusion that the substance distributed
by Melbert was crack cocaine rather than some other form of
cocaine. See United States v. Chavez, 947 F.2d 742, 746 (5th
Cir. 1991). Accordingly, Melbert’s conviction and sentence are
AFFIRMED.