IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40188
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LEWIS MALONSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CR-64-1)
November 24, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Malonson appeals his sentence entered after he pled guilty to
violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c). In
particular, Malonson contends that the district court erred in
calculating his offense level by relying upon information he
divulged, after executing a plea agreement, about the quantity of
drugs involved in the conspiracy. According to Malonson, the
district court’s use of this information violated U.S.S.G. § 1B1.8.
Malonson’s claim that the terms of his plea agreement were not
honored distills down to an objection about the district court’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this opinion should not be published and is not precedent except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.
determination of the quantity of drugs implicated in the crime, a
finding of fact we review under the clearly erroneous standard.
See United States v. Gibson, 48 F.3d 876, 878 (5th Cir. 1995),
cert. denied, 516 U.S. 852 (1995). Though Malonson argues that he
provided the probation officer with all the details concerning the
amount of drugs involved in his illegal activities, the probation
officer stated in the presentence report that he only relied upon
the statements given by Malonson’s co-conspirators in making his
drug quantity calculation. In addition, the probation officer
averred that Malonson refused to discuss the quantity of drugs
involved in his operation. Since Malonson points to no evidence
demonstrating its inaccuracy, the district court was entitled to
rely upon the PSR. See United States v. Franklin, 148 F.3d 451,
460 (5th Cir. 1998) (“Absent rebuttal evidence demonstrating
inaccuracy, which evidence the defendant bears the burden of
producing, district courts are entitled to rely on PSRs.”). Because
none of the drug-quantity information used to calculate the base
offense level came from Malonson, “the district court’s
determination that § 1B1.8 was not violated will not be disturbed.”
Gibson, 48 F.3d at 879.
The judgment of the district court is AFFIRMED.
2