United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS December 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60099
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYANT BUGGS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:02-CR-79-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Bryant Buggs pleaded guilty to distribution of cocaine
hydrochloride. In sentencing Buggs, the district court increased
his base offense level by two because the individuals
distributing cocaine at Buggs’s direction carried handguns. The
district court’s application of U.S.S.G. § 2D1.1(b)(1) is a
factual determination reviewed for clear error. United States v.
Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001).
*
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this opinion should not be published and is not precedent except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. 04-60099
-2-
Buggs asserts that the Government presented no evidence
relating the possession of firearms to his drug trafficking. The
presentence report (PSR) contained evidence linking Buggs to the
possession of firearms in relation to drug trafficking. See
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). The
burden then shifted to Buggs to prove that it was clearly
improbable that the weapons were connected with the offense. See
United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001).
Buggs offered no evidence in rebuttal. See Huerta, 182 F.3d at
364 (rebuttal evidence must show that the PSR is “materially
untrue, inaccurate or unreliable”). The district court was not
clearly erroneous in its factual finding and did not err in
increasing Buggs’s offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1).
Buggs also contends that his sentence is illegal, under
Blakely v. Washington, 124 S. Ct. 2531 (2004), because the
quantity of cocaine used to determine his sentence, his role in
the offense, and his use of a firearm in relation to the drug
trafficking were not determined by a jury or included in his
plea. This issue is foreclosed by the court's holding in United
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition
for cert. filed (U.S. July 14, 2004) (No. 04-5263).
AFFIRMED.