IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20121
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES V. MORRISON,
Defendant-Appellant.
_____________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-95-178-2)
_____________________________________________________________
October 23, 1996
Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
James V. Morrison argues that the district court erred in
determining the drug quantity attributable to him under the
sentencing guidelines. He also argues for the first time on
appeal that the district court committed plain error in
determining that he had the burden of proving that he did not
have the intent or was not reasonably capable of delivering at
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
least five kilograms but less than fifteen kilograms of cocaine
to the confidential informant.
We have reviewed the applicable sentencing guidelines and
have determined that the district court did not commit plain
error in determining that Morrison had the burden of proving that
he did not intend or did not have the capacity to deliver at
least five kilograms of cocaine. See United States v. Calverley,
37 F.3d 160, 162-64, (5th Cir. 1994) (en banc), cert. denied, 115
S. Ct. 1266 (1995); U.S.S.G. § 2D1.1, comment. (n. 12).
We have further reviewed the record, including the
presentence report and the transcript of the sentencing hearing,
and find that the district court’s determination that Morrison
was accountable for at least five kilograms of cocaine was not
clearly erroneous. United States v. Bermea, 30 F.3d 1539, 1575
(5th Cir. 1994), cert. denied, 115 S. Ct. 1113, 1825 (1995).
Morrison also argues that the district court erred in
increasing his offense level for obstruction of justice. The
record supports the district court’s determination that Morrison
provided materially false testimony at the sentencing hearing.
Thus, the district court did not clearly err in applying the
upward adjustment to Morrison’s offense level. See United States
v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); U.S.S.G. § 3C1.1.
AFFIRMED.
2