United States v. Hamilton

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                           UNITED STATES COURT OF APPEALS
                                For the Fifth Circuit



                                        No. 96-40614
                                      Summary Calendar


                               UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,


                                              versus


                               KENNETH BERNARD HAMILTON,

                                                                      Defendant-Appellant.




                Appeal from the United States District Court
                      For the Eastern District of Texas
                                       (6:95-CR-36-14)
                                        July 29, 1997


Before WISDOM, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*

       Kenneth Bernard Hamilton appeals his sentence following a

guilty-plea conviction for possession of cocaine base with intent

to distribute in violation of 21 U.S.C. § 841(a)(1).                                The

district court considered the purchase or delivery of six ounces

of cocaine base as relevant conduct to determine Hamilton’s



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
offense level.   Hamilton asserts that this finding was based on

information contained in the presentencing report which was

unreliable.

     The district court has “wide discretion in the kind and

source of information [it] considers in imposing a sentence.”

United States v. Young, 981 F.2d 180, 185 (5th Cir.), cert.

denied, 508 U.S. 955, 980 (1993).      “[T]he court may consider

relevant information without regard to its admissibility under

the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy.   U.S.S.G. § 6A1.3(a).     A defendant who objects

to the district court’s consideration of information for purposes

of sentencing bears the burden of proving that the information is

“materially untrue, inaccurate or unreliable.”       United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991).      If no evidence is

submitted to rebut the information contained in the presentencing

report, the district court is free to adopt its findings without

further inquiry or explanation.       United States v. Mir, 919 F.2d

940, 943 (5th Cir. 1990).

     Rather than submitting evidence to rebut the contested

information, Hamilton rested on his assertion that the

presentencing report was unreliable.      We find, therefore, that

Hamilton did not carry his burden in this case.      The district

court’s consideration of the information in the presentencing



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report was not erroneous.

     AFFIRMED.




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