United States v. Hamburg

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 12, 2003
Charles R. Fulbruge III
Clerk
No. 02-30920
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAWRENCE BERNARD HALL, also known as Larry,
Defendant - Appellant.
* * * * *
Consolidated with
02-30962
* * * * *
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELO DONDEE NORMAN,
Defendant - Appellant.
* * * * *
Consolidated With
02-31194
* * * * *
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STANLEY L HAMBURG,
Defendant - Appellant.
No. 02-30920 c/w
02-30962 & 02-31194
-2-
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CR-30043-1
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lawrence Bernard Hall, Angelo Dondee Norman, and Stanley L.
Hamburg, appeal following their guilty-plea convictions for
conspiracy to distribute 50 grams or more of cocaine base. The
Federal Public Defender appointed to represent Hall has moved for
leave to withdraw from this appeal and has filed a brief as
required by Anders v. California, 386 U.S. 738 (1967). Hall was
mailed a copy of counsel’s motion and brief but has not filed
a response. Our independent review of the brief and the record
discloses no nonfrivolous issue with respect to Hall.
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and
Hall’s APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
Norman argues that the district court clearly erred in
assessing a U.S.S.G. § 3B1.1(b) three-level adjustment for his
leadership role in the offense. Norman blue brief, 8-13. He
contends that, but for this adjustment, he would have qualified
for a safety valve reduction pursuant to U.S.S.G. § 5C1.2.
*
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that this opinion should not be published and is not precedent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. 02-30920 c/w
02-30962 & 02-31194
-3-
We hold that the Government met its burden of proving by a
preponderance of the evidence that Norman played a leadership
role in the offense and that the criminal activity involved at
least five participants. United States v. Elwood, 999 F.2d 814,
817 (5th Cir. 1993). Accordingly, the district court did not
clearly err in assessing a three-level increase pursuant to
U.S.S.G. § 3B1.1(b). United States v. Parker, 133 F.3d 322, 329
(5th Cir. 1998). As a defendant receiving an aggravating role
adjustment pursuant to U.S.S.G. § 3B1.1, Norman was ineligible
for relief under the safety valve provision. See U.S.S.G.
§ 5C1.2(4). Accordingly, his sentence is AFFIRMED.
Hamburg argues that, since the statutory minimum sentence
and his guideline minimum sentence were the same, the district
court was authorized to depart below the statutorily-mandated
ten-year minimum for his offense. Because Hamburg raises this
issue for the first time on appeal, it is subject to plain error
review. Pursuant to FED. R. CRIM. P. 52(b), we may correct
forfeited errors only when the appellant shows the following
factors: (1) there is an error, (2) that is clear or obvious,
and (3) that affects his substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 731-37 (1993)). Because
Hamburg fails to identify “clear or obvious” error, his sentence
is AFFIRMED. See Melendez v. United States, 518 U.S. 120,
125-26, 129-30 (1996).