IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40440
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON LEKEITH WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
USDC No. 6:95-CR-36-42
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March 14, 1997
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Marlon Lekeith Williams appeals his sentence for conspiracy to
manufacture, possession with intent to distribute, and distribution
of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. He
argues that the government failed to prove that the cocaine base
was “crack” rather than another form of cocaine base, that the
district court erred in calculating the amount of drugs
*
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this opinion should not be published and is not precedent except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.
attributable to him, and that the district court miscalculated his
criminal history category.
The Presentence Investigation Report (“PSR”) attributed 50.64
grams of cocaine base to Williams. Williams objected to the amount
of drugs attributable to him but apparently offered no evidence in
support of his assertion that the stated amount was unwarranted in
the light of the evidence. See United States v. Alfaro, 919 F.2d
962, 966 (5th Cir. 1990) (holding that “unsworn assertions do not
bear ‘sufficient indicia of reliability to support [their] probable
accuracy,’ and, therefore, should not generally be considered by
the trial court in making its factual findings” under sentencing
guidelines but that “presentence report[s] generally bear[]
sufficient indicia of reliability” for that purpose). Williams
again asserts, before this court, that the PSR attributed to him
excessive quantities of cocaine base. Williams, however, fails to
point to any probative evidence demonstrating that the district
court clearly erred in adopting the PSR recommendation. Instead,
he merely asserts that the testimony of his co-conspirator, who
attributed approximately fifteen of the fifty plus grams of cocaine
base to him, was uncorroborated and unreliable. On this basis, we
cannot say that the decision of the trial court to adopt the PSR
was clearly erroneous. See Alfaro, 919 F.2d at 965-66; see also
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United States v. Sherbak, 950 F.2d 1095, 1099-1100 (5th Cir. 1992)
(holding “when a defendant objects to his PSR but offers no
rebuttal evidence to refute the facts, the district court is free
to adopt the facts in the PSR without further inquiry”).
Furthermore, Williams pleaded guilty to an offense that he
acknowledged carried a statutory mandatory minimum sentence of ten
years. He does not contest the validity of that plea and cannot
therefore contest the mandatory sentence imposed.
Williams pleaded guilty to conspiracy to possess and
distribute cocaine base in violation of 21 U.S.C. § 846. He did
not object at the district court to the classification of the
substance involved as cocaine base. On appeal, however, Williams
argues that his sentence was erroneously based upon the sentencing
guidelines for “crack” cocaine, which he contends do not apply to
all forms of cocaine base. Williams, however, was sentenced to the
statutory minimum sentence for violations of 21 U.S.C. § 846
involving 50 or more grams of a substance or mixture containing
cocaine base. See 21 U.S.C. § 841(b)(1)(A). Thus, the statutory
minimum sentence applies to the offense to which Williams pleaded
guilty, and the distinction between “crack” cocaine and other
cocaine bases is not relevant. See United States v. James, 78 F.3d
851, 858 (3d Cir. 1996).
-3-
The trial court sentenced Williams under 21 U.S.C.
§ 841(b)(1)(A), which requires a mandatory minimum sentence of ten
years for violations of § 841(a) or § 846 involving 50 grams or
more of a substance or mixture containing cocaine base. Williams
received the mandatory minimum sentence for the offense to which he
pleaded guilty and thus, any error in the calculation of his
criminal history category is harmless. See Williams v. United
States, 503 U.S. 193, 203 (1992); Fed. R. Crim. P. 52(a); U.S.S.G.
§ 5G1.1(b).
A F F I R M E D.
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