UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-40971
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AL JERNIGAN,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(6:96-CR-16-1)
June 18, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Al Jernigan appeals his sentence for possession with intent to
distribute and distribution of cocaine base in violation of 21
U.S.C. § 841(a)(1) and aiding and abetting in violation of 18
U.S.C. § 2. Jernigan’s court-appointed counsel alleges that no
nonfrivolous issues exist on appeal, and he has submitted a motion
*
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opinion should not be published and is not precedent except under the limited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.
to withdraw. Finding no meritorious issues for appeal, we grant
defense counsel’s motion and dismiss Jernigan’s appeal.
During a routine traffic stop, Jernigan consented to a search
of his vehicle, where police found a large amount of cash and
traces of cocaine base. During subsequent police interviews,
Jernigan admitted to receiving as much as sixteen ounces of cocaine
base from one Hernando Garses and to selling about five ounces of
cocaine base every two weeks. Jernigan also consented to a search
of his residence, where police found equipment to manufacture
cocaine base, a large amount of cash, and eleven weapons, including
loaded firearms.
As a result of these discoveries, police arrested Jernigan
and six others, and a grand jury handed down a multiple-count
indictment. As part of a plea bargain, Jernigan: (1) pled guilty
to one count of possession with intent to distribute and
distribution of cocaine base; (2) pled guilty to one count of
aiding and abetting; and (3) made a knowing and voluntary waiver of
his rights to appeal any issues not related to sentencing. As a
result, federal prosecutors dropped the remaining charges.
Jernigan’s parole officer recommended in his presentence report
(“PSR”) an offense level of thirty-five, based on the quantity of
cocaine attributable to him, a three-level reduction for accepting
responsibility, and a two-level weapons enhancement.
Because undercover police officers had twice arrested Jernigan
for selling narcotics, the court found Jernigan to be a career
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offender and assessed a criminal history category of VI. The
resulting guideline range of 292-365 months exceeded the twenty-
year statutory maximum of 21 U.S.C. § 841(b)(1)(c), to which
Jernigan had pled guilty, so his parole officer recommended a 240-
month term, a three-year period of supervised release, and a fifty-
dollar special assessment. The district court adopted the PSR in
its entirety. Jernigan appeals the determination of his base
offense level, the application of a two-level enhancement for
possessing a dangerous weapon, and the finding that Jernigan is a
career offender.
Jernigan’s court-appointed counsel filed a motion to withdraw
from this appeal pursuant to Anders v. California, which
establishes the procedure an appointed lawyer must follow in order
to withdraw from an appeal. 386 U.S. 738, 744, 87 S. Ct. 1396,
1400, 18 L. Ed. 2d 493 (1967). If, after a conscientious
examination, counsel finds no nonfrivolous issues remain in an
appeal, he or she may request permission from the appellate court
to withdraw. Id. Counsel must brief the court on any issue that
might arguably support an appeal and give the appellant a copy of
the brief, and the court must afford the appellant an opportunity
to argue any point he or she chooses. Id. After a full
examination by the court, if the appeal is found to be wholly
frivolous, the court may grant counsel’s request to withdraw and
dismiss the appeal. Id. Counsel has briefed the issues and
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provided Jernigan with a copy of the brief. Jernigan has not
submitted any argument that his appeal should be heard.
Jernigan challenges the quantity of drugs attributed to him
during sentencing. In the PSR section on drug quantity, Jernigan’s
probation officer added the 10.1 grams of cocaine base and the 2.16
grams of cocaine powder that Jernigan sold to undercover officers,
to the twenty-six ounces of cocaine base that Jernigan admitted in
interviews to having sold.1 The court adopted the PSR, and
Jernigan disputes the attribution of those twenty-six ounces to him
for sentencing. We review the application of the sentencing
guidelines de novo and the district court’s findings of fact for
clear error. United States v. McKinney 53 F.3d 664, 677 (5th
Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 261, 133 L. Ed. 2d
184 (1996).
In computing a sentence under the guidelines, a district court
need not be convinced of drug quantity beyond a reasonable doubt;
it need only be convinced by a preponderance of the evidence. Id.
at 677. That evidence need not be admissible at trial, so long as
it has sufficient “indicia of reliability” to support its probable
accuracy. United States v. Vital, 68 F.3d 114, 129 (5th Cir.
1995). The PSR, standing alone, generally contains sufficient
indicia of reliability to be dispositive in resolving facts for use
1
Jernigan claimed to have sold five ounces of cocaine base every other
week, which his probation officer took to mean that he had sold a minimum of ten
ounces of cocaine base. Jernigan also admitted to receiving as much as 16 ounces
of cocaine base from Garses, for a total of 26 ounces by admission.
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under the sentencing guidelines. United States v. Brown, 54 F.3d
234, 242 (5th Cir. 1995). Furthermore, when an appellant submits
no affidavit to rebut the PSR, the court is free to adopt its
findings without further inquiry or explanation. Vital 68 F. 3d at
120. The drug quantity is based on sales for which Jernigan has
been arrested and on his own confessions, which he does not
challenge. We rely on the unrebutted PSR to set the amount of
drugs attributable to Jernigan and find that the district court did
not err in its quantity determination for sentencing. There is no
nonfrivolous issue as to the drug quantity determination.
We must also examine whether the district court properly
enhanced Jernigan’s offense level under section 2D1.1(b)(1) for
possession of a weapon during the offense. Jernigan objected to
this enhancement, but offered no rebuttal evidence. We review the
district court’s sentencing determination for clear error. United
States v. Castillo, 77 F.3d 1480, 1498 (5th Cir.), cert. denied.
___ U.S.___, 117 S. Ct. 180, 136 L. Ed. 2d 120 (1996). The
relevant guideline reads, simply: “If a dangerous weapon (including
a firearm) was possessed, increase by 2 levels.” Unrebutted
evidence in the PSR shows that there were eleven weapons, including
firearms, in Jernigan’s residence. The evidence showed that
Jernigan had used his residence to manufacture cocaine base, and
police found the weapons in the same location where drugs or drug
paraphernalia were stored. Therefore the weapons enhancement
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presents no appealable error. See United States v. Hooten, 942 F.
2d 878, 883 (5th Cir. 1991).
Next, we consider whether the district court correctly
determined that Jernigan was a career offender. A defendant is a
career offender if: (1) he was at least eighteen years old at the
time of the instant offense, (2) the offense is a felony that is
either a crime of violence or a controlled substance offense, and
(3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense. USSG
§ 4B1.1. Jernigan was at least eighteen, and this is a controlled
substance offense, so only the two prior convictions were at issue
in the district court.
A federal and a state court each issued a separate, prior
conviction in this case. An undercover police officer arrested
Jernigan on April 6, 1990 for selling him a gram of cocaine.
Jernigan pled guilty in state court and received deferred
adjudication. A separate undercover police officer arrested
Jernigan on April 12, 1990 for selling him 6.69 grams of cocaine.
Jernigan subsequently pled guilty in federal court. Jernigan argued
that these convictions were “related cases” pursuant to USSG
section 4A1.2 and thus should not count as two separate convictions
for determining criminal history. However, “prior sentences are
not considered related if they were for offenses that were
separated by an intervening arrest.” USSG § 4A1.2, comment. (n.3).
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Here there was obviously an intervening arrest, a mere six days
after the first. Further, the sales occurred on separate dates and
separate sovereigns entered the convictions. Therefore it was not
error to consider these two convictions unrelated.
Finally, counsel’s brief suggests that the district court’s
determination of Jernigan’s criminal history points may present a
nonfrivolous issue. It does not. The district court found
Jernigan to be a career offender, and USSG section 4B1.1 says that
“a career offender’s criminal history category in every case shall
be Category VI.” Therefore, Jernigan’s criminal history points,
even if erroneous, had no effect on his ultimate sentence, which
was determined by section 4B1.1.
We find no meritorious issues to support Jernigan’s appeal.
Therefore, we GRANT counsel’s request to withdraw, and we DISMISS
this appeal.
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