United States v. Norman

United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                September 12, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 02-30920
                        Summary Calendar

UNITED STATES OF AMERICA,

                              Plaintiff - Appellee,

versus

LAWRENCE BERNARD HALL, also known as Larry,

                              Defendant - Appellant.

                            * * * * *
                        Consolidated with
                             02-30962
                             * * * * *

UNITED STATES OF AMERICA,

                              Plaintiff - Appellee,

versus

ANGELO DONDEE NORMAN,

                              Defendant - Appellant.

                            * * * * *
                        Consolidated With
                             02-31194
                            * * * * *

UNITED STATES OF AMERICA,

                              Plaintiff - Appellee,

versus

STANLEY L HAMBURG,
                              Defendant - Appellant.
                           No. 02-30920 c/w
                         02-30962 & 02-31194
                                  -2-

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 01-CR-30043-1
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lawrence Bernard Hall, Angelo Dondee Norman, and Stanley L.

Hamburg, appeal following their guilty-plea convictions for

conspiracy to distribute 50 grams or more of cocaine base.     The

Federal Public Defender appointed to represent Hall has moved for

leave to withdraw from this appeal and has filed a brief as

required by Anders v. California,
386 U.S. 738
(1967).    Hall was

mailed a copy of counsel’s motion and brief but has not filed

a response.    Our independent review of the brief and the record

discloses no nonfrivolous issue with respect to Hall.

Accordingly, counsel’s motion for leave to withdraw is GRANTED,

counsel is excused from further responsibilities herein, and

Hall’s APPEAL IS DISMISSED.    See 5TH CIR. R. 42.2.

     Norman argues that the district court clearly erred in

assessing a U.S.S.G. § 3B1.1(b) three-level adjustment for his

leadership role in the offense.    Norman blue brief, 8-13.   He

contends that, but for this adjustment, he would have qualified

for a safety valve reduction pursuant to U.S.S.G. § 5C1.2.

     *
        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. 02-30920 c/w
                         02-30962 & 02-31194
                                  -3-

     We hold that the Government met its burden of proving by a

preponderance of the evidence that Norman played a leadership

role in the offense and that the criminal activity involved at

least five participants.    United States v. Elwood,
999 F.2d 814,

817
(5th Cir. 1993).    Accordingly, the district court did not

clearly err in assessing a three-level increase pursuant to

U.S.S.G. § 3B1.1(b).     United States v. Parker,
133 F.3d 322, 329
(5th Cir. 1998).    As a defendant receiving an aggravating role

adjustment pursuant to U.S.S.G. § 3B1.1, Norman was ineligible

for relief under the safety valve provision.     See U.S.S.G.

§ 5C1.2(4).    Accordingly, his sentence is AFFIRMED.

     Hamburg argues that, since the statutory minimum sentence

and his guideline minimum sentence were the same, the district

court was authorized to depart below the statutorily-mandated

ten-year minimum for his offense.    Because Hamburg raises this

issue for the first time on appeal, it is subject to plain error

review.    Pursuant to FED. R. CRIM. P. 52(b), we may correct

forfeited errors only when the appellant shows the following

factors:    (1) there is an error, (2) that is clear or obvious,

and (3) that affects his substantial rights.     United States v.

Calverley,
37 F.3d 160, 162-64
(5th Cir. 1994) (en banc) (citing

United States v. Olano,
507 U.S. 725, 731-37
(1993)).     Because

Hamburg fails to identify “clear or obvious” error, his sentence

is AFFIRMED.    See Melendez v. United States,
518 U.S. 120,

125-26, 129-30
(1996).