IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40309
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BRYAN SPRATT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:96-CV-216
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November 9, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
David Bryan Spratt, federal prisoner # 04999-078, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. On September 9,
1997, this court granted COA on the issue “whether counsel was
ineffective in advising Spratt to stipulate to a quantity of 137
marijuana plants without investigating whether fewer than 100 of
them had `roots, a root ball, or root hairs’ to qualify as
`plants’ under the sentencing guidelines.” Spratt argues that
*
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that this opinion should not be published and is not precedent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. 97-40309
-2-
his counsel’s performance was deficient in failing to argue that
some of the marijuana cuttings did not constitute “plants”
because they did not have roots, a root ball, or root hairs.
Spratt also argues that he was prejudiced by his counsel’s error
because his counsel’s stipulation that there were over 100 plants
caused him to be subject to a five-year mandatory minimum
sentence under 18 U.S.C. § 841(b)(10(B)(vii). He contends that
but for his counsel’s error, he would have received a
significantly less harsh sentence. Spratt did not present any
evidence in the district court which established that some of the
marijuana did not have roots, a root ball, or root hairs and thus
did not constitute “plants” under § 2D1.1. There is only
speculation that some of marijuana did not constitute “plants”
under § 2D1.1. Therefore, Spratt has not demonstrated that he
was prejudiced by his counsel’s alleged error in stipulating to
the number of marijuana plants.
Spratt has filed a motion to remand the case to the district
court for an evidentiary hearing on this issue. Spratt has not
shown that an evidentiary hearing would add any additional
evidence to the record to support his claim as the marijuana has
been destroyed. Therefore, Spratt’s motion to remand the case
for an evidentiary hearing is DENIED.
AFFIRMED; MOTION TO REMAND CASE FOR EVIDENTIARY HEARING
DENIED.