United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-50687
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE KEITH HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-5-1
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Horace Keith Harris appeals his sentence following his
guilty-plea conviction for possession with the intent to
distribute cocaine. The district court sentenced Harris to
70 months in prison based on information in the revised
presentence report (PSR) that he was responsible for 2,000
Ecstacy pills that an informant testified were in Harris’s
possession.
Harris argues that the information provided by the testimony
of the informant regarding the pills in his possession after
*
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this opinion should not be published and is not precedent except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. 06-50687
-2-
certain sales was unreliable because it was not shown that these
pills were not the same pills subsequently sold to the informant.
This court reviews the sentencing court’s factual findings for
clear error and its “interpretation and application of the
Sentencing Guidelines de novo.” United States v. Gonzales, 436
F.3d 560, 584 (5th Cir. 2006).
Although it is true that Harris’s revised PSR is based on
the testimony of the informant that Harris possessed Ecstacy
pills in addition to the ones sold to the informant, Harris has
not presented any rebuttal evidence to show that these additional
pills were the same pills that were sold to the informant on
subsequent occasions. Absent rebuttal evidence, Harris cannot
show that the court’s adoption of the drug quantity information
was clearly erroneous. See United States v. Carbajal, 290 F.3d
277, 287 (5th Cir. 2002).
AFFIRMED.