UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40034
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE A. HAMMOND,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-00-CV-191)
_________________________________________________________________
October 15, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Bruce A. Hammond, federal inmate #76762-079, appeals, pro se,
the denial of his 28 U.S.C. § 2255 motion. A certificate of
appealability was granted on the issue whether trial counsel
provided ineffective assistance by neglecting to challenge the
weight of the marijuana that was used to determine Hammond’s
sentence. At trial, counsel stipulated that the marijuana at issue
weighed approximately 762 kilograms.
In response to the §2255 motion, the Government conceded that
the weight of the plastic packaging and fabric softener sheets
should have been deducted. In denying the motion, the district
*
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this opinion should not be published and is not precedent except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.
court allowed an eight percent reduction to account for the weight
of the packaging material and determined, for the reasons that
follow, that Hammond had not shown actual prejudice, i.e., Hammond
had not shown that, if counsel had challenged the weight, Hammond’s
sentence would have been significantly less harsh. The eight
percent reduction lowered the weight of the marijuana to 701.84
kilograms. To qualify for a lesser sentence, Hammond was required
to demonstrate that the weight of the marijuana was less than 700
kilograms. See U.S.S.G. §§ 2D1.1(c)(5) and (6).
In Glover v. United States, 531 U.S. 198, 203, 204 (2001), the
Court held that the Strickland v. Washington, 466 U.S. 668 (1984),
standard of actual prejudice applied in the sentencing context.
Therefore, Hammond was required to show there is a reasonable
probability that, but for counsel’s failure to challenge the weight
of the marijuana, his sentence would have been different. See
Strickland, 466 U.S. at 694.
Hammond has not shown that the district court’s findings
concerning the weight of the marijuana at issue were clearly
erroneous. See United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995) (district court may rely on presentence report at sentencing
and adopt its findings without further consideration unless report
is rebutted by evidence); United States v. Faubion, 19 F.3d 226,
228 (5th Cir. 1994) (district court’s 28 U.S.C. § 2255 findings are
reviewed for clear error). Hammond’s assertion that his sentence
would have been different if counsel had challenged the weight of
the marijuana is insufficient to establish ineffective assistance.
2
See Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert.
denied, 506 U.S. 957 (1992).
AFFIRMED
3