IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40939
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS BANDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CR-50-5
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August 19, 1998
Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Carlos Banda contends that the district court erred in
determining that he was responsible for 1489 kilograms of
marijuana for sentencing purposes because the information in the
presentence report (PSR) was unreliable. Because Banda failed to
object to the drug quantity calculation, review is limited to
plain error. Fed. R. Crim. P. 52(b); United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994)(en banc); United States v.
Olano, 507 U.S. 725, 730-35 (1993).
*
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that this opinion should not be published and is not precedent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.
No. 97-40939
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The police officer who had provided the information
contained in the PSR, David Gonzalez, testified at sentencing.
As Banda did not rebut this testimony at sentencing and in fact
admitted it, the district court was free to adopt the PSR
findings based on this testimony without further inquiry or
explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.
1990). On appeal, Banda has still not shown that this
information is materially untrue and has not shown that he is
entitled to appellate relief on this issue.
Banda argues that his counsel was ineffective at sentencing
because he failed to request application of the "safety-valve"
provisions of the sentencing guidelines and failed to object to
the amount of marijuana attributed to Banda. Generally, this
court declines to review Sixth Amendment claims of ineffective
assistance of counsel on direct appeal; however, we have
“undertaken to resolve claims of inadequate representation on
direct appeal ... in rare cases where the record allowed [the
court] to evaluate fairly the merits of the claim.” United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). This is
such a case.
First, Banda was sentenced based on the guidelines’ range
not the statutory minimum and the safety-valve provisions are not
applicable and counsel did not err in failing to invoke them.
See United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995).
No. 97-40939
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Second, as shown above, Banda has not established any basis
for a challenge to the material truth of the information
contained in the PSR and has not shown that counsel could have
lodged a legitimate objection to it. Accordingly, he has not
shown that counsel’s performance was deficient in any manner.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
AFFIRMED.