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United States v. Hartzog, 95-60778 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-60778 Visitors: 11
Filed: Jul. 09, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-60778 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MALCOLM HARTZOG, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:95-CR-3-PS - - - - - - - - - - June 27, 1996 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:1 Malcolm Hartzog appeals his guilty-plea conviction for distribution of cocai
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                         __________________

                            No. 95-60778
                          Summary Calendar
                         __________________



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

MALCOLM HARTZOG,

                                         Defendant-Appellant.



                        - - - - - - - - - -
           Appeal from the United States District Court
             for the Southern District of Mississippi
                       USDC No. 2:95-CR-3-PS
                        - - - - - - - - - -
                           June 27, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Malcolm   Hartzog   appeals   his   guilty-plea   conviction   for

distribution of cocaine.    He argues that the district court erred

in increasing his base offense level by two points under U.S.S.G.

§ 3B1.1(c) for his role in the offense, and his rights under the

Double Jeopardy Clause were violated in the computation of his

criminal history category under § 4A1.1 and the civil forfeiture


     1
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
proceeding.      We review these issues under the plain error standard

because Hartzog raises these grounds for the first time on appeal.

See United States v. Calverley, 
37 F.3d 160
, 162-64 (5th Cir. 1994)

(en banc), cert. denied, 
115 S. Ct. 1266
(1995).

     Hartzog has not demonstrated any error, plain or otherwise.

Hartzog has not carried his burden of showing that the district

court considered       unreliable    information      in   imposing   sentence.

Further,    he   did   not   object,   but   agreed    to   the   Government's

stipulation that a two-level increase for his role in the offense

was appropriate.       United States v. Angulo, 
927 F.2d 202
, 2105 (5th

Cir. 1991); United States v. Branch, 
46 F.3d 440
, 442 (5th Cir.

1995).

         Hartzog has not shown an error in the computation of his

criminal history category.          The sentencing court did not impose

greater punishment under the guidelines than Congress intended.

See United States v. Bigelow, 
897 F.2d 160
, 161 (5th Cir. 1990)

(citing inter alia Albernaz v. United States, 
450 U.S. 333
, 343-44

(1981)).    Moreover, Hartzog has not provided any portion of the

record of the forfeiture proceeding to support a review of his

double jeopardy argument.       See United States v. Gonzalez, 
76 F.3d 1339
, 1342 (5th Cir. 1996); Fed. R. App. P. 10(b)(2), 11(a).

     AFFIRMED.




                                       2

Source:  CourtListener

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