United States v. Brown

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40420
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BELFREY BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No.6:96-CR-22-13
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December 8, 1997
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Belfrey Brown appeals his conviction and sentence for
possession with intent to distribute and distribution of cocaine
base, aiding and abetting, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. The district court did not clearly err in
adopting the factual findings of the PSR in determining the
amount of drugs attributable to Brown, since the PSR had
sufficient indicia of reliability, and Brown failed to
demonstrate that the PSR was unreliable. See United States v.
*
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that this opinion should not be published and is not precedent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. 97-40420
-2-
Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996); United States v.
Valencia, 44 F.3d 269, 274 (5th Cir. 1995). For the same reason,
the district court did not err in declining to require laboratory
analysis of the substance determined to be “crack” to ensure that
it was not cocaine hydrochloride. Id.
Nor was it clear error for the district court to apply
§ 2D1.1(b)(1) of the guidelines to increase Brown’s offense level
by two on the basis of the firearm found in Brown’s closet along
with drugs and ammunition. See United States v. Eastland, 989
F.2d 760, 770 (5th Cir. 1993).
It is unnecessary to decide whether Solis should have been
subpoenaed for the sentencing hearing. Assuming, arguendo, that
Solis would have testified as Brown asserts, elimination of the
amount of drugs linked to Brown through Solis would not have
changed Brown’s base offense level, rendering any error harmless.
See § 2D1.1(c)(2).
AFFIRMED.