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United States v. Bess ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41057
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE EDWIN BESS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-98-CR-70-1
--------------------
June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges
PER CURIAM:*
The defendant’s only claim on appeal is that the district
court committed clear error in finding that the defendant’s
relevant conduct involved more than 500 grams of crack cocaine.
In making the drug-quantity determination, the district court may
consider drug quantities not specified in the count of conviction
if they are part of the defendant’s relevant conduct as defined
in U.S.S.G. § 1B1.3.   See § 2D1.1, comment. (n.12); see also
United States v. Vital,
    68 F.3d 114
    , 117 (5th Cir. 1995).       The
district court’s determination of the quantity of drugs for
*
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that this opinion should not be published and is not precedent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. 99-41057
-2-
sentencing purposes is a factual finding that this court reviews
for clear error.    United States v. Torres,
    114 F.3d 520
    , 527 (5th
Cir. 1997).    A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.    United States
v. Alford,
    142 F.3d 825
    , 831 (5th Cir.), cert. denied,
    525 U.S. 1003
     (1998).    “Credibility determinations in sentencing hearings
‘are peculiarly within the province of the trier-of-fact.’”
United States v. Sotelo,
    97 F.3d 782
    , 799 (5th cir. 1996)
(citation omitted).
The Presentence Report (“PSR”) calculated the relevant
amount of crack cocaine at over 13 kilograms, based on FBI
interviews with informants familiar with the defendant’s drug-
trafficking activities.   At the sentencing hearing, the defendant
presented witnesses who contradicted the PSR.    The district court
concluded that the informants overstated the relevant amount of
drugs.   In approximating the quantity of drugs, the court gave
the defendant “the benefit of the doubt” and reduced the amount
from over 13,000 grams to just over 500 grams.    Although the
defendant contends that the Government’s evidence was unreliable
and implausible and that the district court “double counted” some
sales by accepting the overlapping testimony of both Hicks and
Gonzales, the district court’s finding is plausible in light of
the record read as a whole.    See Alford,
    142 F.3d at 831
    .   The
district court committed no error.
The ruling of the district court is AFFIRMED.