UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40205
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JOE KIMBLE,
Defendant-Appellant.
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Appeal from the United States District Court
For the Eastern District of Texas
(4:94 CR 505)
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September 20, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Robert Joe Kimble and ten co-defendants were charged in a
thirteen-count indictment with conspiracy to possess with the
intent to distribute cocaine base, in violation of 21 U.S.C. § 846
and with possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1). Kimble plead guilty to Count
7, possession with intent to distribute less than five grams of
*
Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that Rule, the Court has determined that
this opinion should not be published.
crack cocaine. Kimble appeals his sentence and we affirm.
I
During a five month undercover operation at Kimble's home
agents made one hundred and six purchases of crack cocaine.
Undercover officer Paul Cogwell purchased crack cocaine directly
from Kimble on two occasions. Cogwell also witnessed Kimble
selling crack to other customers, participating in the pooling of
money to purchase drugs and sharing duties at the crack house.
Kimble lived at the crack house for ten to twelve years before the
investigation began and continued to live there during the
investigation, except for brief periods when he was in jail on
unrelated charges. Kimble was arrested and charged as a result of
the investigation. Kimble plead guilty to a single count of
possession with intent to distribute less than five grams of crack
cocaine. The district court sentenced Kimble to 108 months in
prison, a three-year term of supervised release, and a $10,000
fine.1
Kimble appeals his sentence, alleging that (1) the district
court erred in determining the quantity of drugs attributable to
him through the conspiracy for purposes of determining his base
level offense under the guidelines; and (2) the sentencing
guidelines violate his due process, equal protection, and Eighth
1
Under the 1994 Sentencing Guidelines, the district court
determined Kimble's base offense level at 32 and found that Kimble was
responsible for more than 50 but less than 150 grams of cocaine. Kimble's
acceptance of responsibility reduced his base offense level to 29. Kimble's
level III criminal history and 29 base offense level produced a guideline range
of 108 to 135 months of imprisonment.
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Amendment rights.
II
Kimble contends that the district court improperly determined
the quantity of drugs that can be attributed to him to determine
his base offense level.2 The quantity of drugs reasonably
foreseeable to a defendant is a question of fact which we review
for clear error.3 United States v. Pofahl, 990 F.2d 1456, 1479
(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 266, 126 L.
Ed. 2d 218 (1993) and cert. denied, ___ U.S. ___, 114 S. Ct. 560,
126 L. Ed. 2d 460 (1993); United States v. Angulo, 927 F.2d 202,
205 (5th Cir. 1991), aff'd 979 F.2d 210 (1991). Kimble claims in
essence that the district court erred in determining the relevant
conduct properly attributed to him under § 1B1.3(a)(1)(B) of the
guidelines. "The factual findings made by a district court in its
determination of a defendant's relevant conduct for sentencing
purposes are subject to the 'clearly erroneous' standard of review
on appeal." United States v. McCaskey, 9 F.3d 368, 372 (5th Cir.
1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1565, 128 L. Ed. 2d
211 (1994). Under either standard of review we affirm.
Kimble contends that the district court erroneously attributed
2
We will uphold the district court's sentence as long as it
results from a correct application of the sentencing guidelines to factual
findings that are not clearly erroneous. Id. "If the district court's account
of the evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently."
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed.
2d 518 (1985).
3
Clear error is generally considered a more deferential standard
of review than clearly erroneous. See United States v. Tello, 9 F.3d 1119, 1122
(5th Cir. 1993).
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sales of crack cocaine to him that he could not have reasonably
foreseen.4 Kimble states that he was in prison when the undercover
operation at his residence began and during the final months of the
conspiracy. He argues that because he was in prison periodically
he could not have foreseen his co-defendants' drug transactions;
therefore, in determining the quantity of drugs that constitute his
"relevant conduct" for sentencing, the district court, he contends,
should have sentenced him solely based on the two sales he made to
Cogwell, not sales made by his 1co-defendants.
The presentence investigation report ("PSR") detailed
Cogwell's observations of Kimble pooling money with others at the
crack house to purchase drugs and his sharing of duties there, in
addition to Kimble's two direct sales to Cogwell.5 In overruling
Kimble's objections to the PSR, the court explicitly found that
4
The offense level of a defendant convicted of a drug
trafficking offense is determined by the quantity of drugs involved in the
offense. U.S.S.G. § 2D1.1(a)(3). "This quantity includes both drugs with which
the defendant was directly involved, and drugs that can be attributed to the
defendant in a conspiracy as part of his 'relevant conduct' under
§ 1B1.3(a)(1)(B) of the Guidelines." United States v. Carreon, 11 F.3d 1225,
1230 (5th Cir. 1994). Section 1B1.3(a)(1)(B) defines relevant conduct as "all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity." U.S.S.G. §1B1.3(a)(1)(B). To attribute
conspiratorial conduct to a defendant under section 1B1.3(a)(1)(B), the court
must explicitly find that the conduct was within the scope of the defendant's
agreement and "reasonably foreseeable" to the defendant. Carreon, 11 F.3d at
1230-31 (citing United States v. Evbuomwan, 992 F.2d 70, 72 (5th Cir. 1993)).
5
The district court adopted the findings of the PSR as its findings
of fact. "A presentence report generally bears sufficient indicia of reliability
to be considered as evidence by the district court in resolving disputed facts.
A district court may adopt facts contained in the PSR without further inquiry if
the facts have an adequate evidentiary basis and the defendant does not present
rebuttal evidence." United States v. Valencia, 44 F.3d 269 (5th Cir. 1995)
(citations omitted). To the extent that a defendant's objections to the PSR
contain unsworn assertions, they are not sufficiently reliable and should not be
considered in making sentencing decisions. See United States v. Alfaro, 919 F.2d
962, 966 (5th Cir. 1990) (quoting U.S.S.G. § 6A1.3 comment.).
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there was more than fifty grams of crack cocaine encompassed in
Kimble's relevant conduct. Further the court concluded, based on
the PSR, that this amount was foreseeable to Kimble and that it was
sold in furtherance of the conspiracy. Citing United States v.
Puig-Infante,6 the court also found that there was no evidence that
Kimble had ever withdrawn or abandoned the conspiracy while he was
in jail. The court emphasized that to the contrary, there was
evidence that Kimble returned to the crack house immediately after
being released from jail and resumed selling drugs.
Kimble correctly points out that we have found that "relevant
conduct" can only encompass conduct after a defendant has joined a
conspiracy; a defendant cannot be sentenced based on his co-
conspirators' activities before he joined the conspiracy. Carreon,
11 F.3d at 1235-36; U.S.S.G. § 1B1.3(a)(1)(B), comment. (n.2).
Kimble in essence contends that his sentence encompasses drug
transactions that occurred while he was in jail at the beginning of
the investigation))before he claims he joined the conspiracy. The
court through its adoption of the PSR's findings, explicitly found
Kimble responsible for the relevant conduct of the conspiracy from
the beginning of the investigation until the end, regardless of his
imprisonment. This conclusion is adequately supported by the
record and reasonable given that Kimble's family was running the
drug operation from Kimble's residence of ten to twelve years.
Kimble admits having sold crack cocaine from the residence and
6
19 F.3d 929, 945 (5th Cir. 1994), cert. denied, ___ U.S. ___,
115 S. Ct. 180, 130 L. Ed. 2d 115 (1994) (stating that incarceration alone is not
an affirmative act which can establish withdrawal from a conspiracy).
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knowing that others, including his family members, were also
selling crack cocaine. On one occasion after he was released from
jail Kimble immediately returned to the crack house and began
selling drugs again. In addition, Cogwell observed Kimble taking
part in the conspiracy by pooling money to buy drugs and by taking
turns with the other sellers at the crack house. Given these
facts, it is reasonable and not clearly erroneous to conclude that
Kimble was involved in the conspiracy during the entire five months
of the investigation despite his occasional imprisonment.
Because the court's findings establish that it was reasonably
foreseeable to Kimble that more than fifty grams of crack cocaine
would be sold, and because Kimble presents no evidence, only
unsworn assertions, to the contrary, we conclude that the court's
determination of the amount of drugs attributable to Kimble as part
of his relevant conduct was not clearly erroneous.
III
Kimble also contends that his sentence violates his
constitutional rights to equal protection, due process, and to be
free from cruel and unusual punishment because the sentencing
guidelines punish less than one gram of cocaine base as if it were
the equivalent of fifty to one hundred fifty grams of cocaine. As
Kimble acknowledges, these claims are foreclosed by Fifth Circuit
precedent. United States v. Cooks, 52 F.3d 101, 105 (5th Cir.
1995) (rejecting an equal protection challenge to the guidelines);
United States v. Fisher, 22 F.3d 574, 579 (5th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S. Ct. 529, 130 L. Ed. 2d 433 (1994)
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(acknowledging that the court has rejected due process, equal
protection, and vagueness challenges to the disparities between
penalties for powdered cocaine and cocaine base and rejecting an
Eighth Amendment challenge to same).7
IV
For the foregoing reasons, we AFFIRM the district court's
sentence.
7
See also United States v. Cherry, 50 F.3d 338, 342-44 (5th Cir.
1995) (no equal protection violation); United States v. Butler, 988 F.2d 537 (5th
Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 413, 126 L. Ed. 2d 359 (1993)
("cocaine base" is not an unconstitutionally vague term) (citing United States
v. Thomas, 932 F.2d 1085 (5th Cir. 1991), cert. denied, 502 U.S. 1038, 112 S. Ct.
887, 116 L. Ed. 2d 791 (1992)); United States v. Galloway, 951 F.2d 64, 65 (5th
Cir. 1992) (the crack cocaine provisions of the sentencing guidelines do not
violate due process or equal protection as applied to African-Americans); United
States v. Watson, 953 F.2d 895 (5th Cir. 1992), cert. denied, 504 U.S. 928, 112
S. Ct. 1989, 118 L. Ed. 2d 586 (1992).
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