United States v. Davis

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                               No. 97-40562
                             Summary Calendar



                      UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                   versus

                         RANDY O’NEIL DAVIS,

                                                 Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:96-CR-76-1
                       - - - - - - - - - -
                         August 20, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:1

     Randy O’Neil Davis appeals his guilty plea conviction and

sentence for possession of crack cocaine with intent to distribute.

Davis argues that the Government breached a promise as to the

quantity of drugs or the length of Davis’ sentence.              Davis also

challenges the amount of drugs attributable to him and the finding

that he was a leader or organizer.

     We have reviewed the record and the parties’ briefs and AFFIRM

the district court. Davis has failed to prove the underlying facts

establishing   a   promise   and   breach   by    a   preponderance   of   the

     1
        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that this opinion should not be published and is not precedent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.
evidence.     United States v. Price, 95 F.3d 364, 367 (5th Cir.

1996).     Davis is responsible for the amount of drugs sold by

codefendant Michael Issac because those sales were part of the same

course of conduct or part of a common scheme or plan as the count

of conviction.        United States v. Bryant, 991 F.2d 171, 177 (5th

Cir. 1993).      We note that Davis was not held accountable for any

drugs sold by codefendant Christopher Levias. Even if the district

court    erred   in   including   the   drugs   found   in   Timothy   Davis’

possession, the error is harmless as Davis’ base offense level

would remain unchanged.           Finally, the district court did not

clearly err in finding that Davis was an organizer or leader with

respect to Issac and Levias given the evidence in the record that

they both worked for Davis.         United States v. Valencia, 44 F.3d

269, 272 (5th Cir. 1995).

     AFFIRMED.