United States v. Brown

United States Court of Appeals
Fifth Circuit
F I L E D
November 12, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10483
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREMON TRAVELL BROWN,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CR-00094-18
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Before SMITH, DEMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Tremon Travell Brown (“Brown”) appeals the sentence imposed following his guilty-plea
conviction for conspiracy to distribute and possess with intent to distribute more than 50 grams of
cocaine base. Brown argues that his due process rights were violated by the dist rict court’s
consideration of testimony at sentencing that concerned matters not included in the presentence
report. Brown further contends that the district court’s drug quantity determination was based upon
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
unreliable and insufficient evidence. Brown additionally maintains that the district court erred in
calculating his criminal history category and by denying him a reduction for acceptance of
responsibility.
Brown’s due process argument is without merit; criminal defendants do not have a due
process right to be notified in advance of the Government’s witnesses at sentencing or the substance
of their testimony. See United States v. Moore, 225 F.3d 637, 644 (6th Cir. 2000). Although the
drug quantity determination was based in part on the statement of a witness who repudiated that
statement at sentencing, it was the district court’s province to evaluate the conflicting statements
made by the witness and make a credibility determination. See United States v. Davis, 76 F.3d 82,
83-85 (5th Cir. 1996). Thus, the district court’s drug quantity determination was not clearly
erroneous or based on unreliable evidence. See id. We dismiss the remainder of Brown’s appeal
because Brown waived his right to appeal these issues in his plea agreement. See United States v.
Robinson, 187 F.3d 516, 517 (5th Cir. 1999).
AFFIRMED IN PART, DISMISSED IN PART.
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