% 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

Nos. 96-31070 and 97-30424 

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEEVERNE FISHER,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(93-CR-16-N)

_________________________________________________________________

October 15, 1998

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:%

Leeverne Fisher plead guilty on March 8, 1993, to conspiracy

to possess with the intent to distribute in excess of fifty

kilograms of marihuana. He was sentenced on September 23, 1996, to

103 months’ imprisonment. In No. 96-31070, Fisher appeals his

conviction and sentence. Fisher subsequently filed a motion in the

district court seeking relief from the judgment, challenging both

his sentencing in abstentia and alleged inaccuracies in the

Presentence Report (PSR). The district court denied the motion on
2

November 6, 1996, explaining that Fisher could present the issues

on his direct appeal. In February 1997, Fisher moved again for

relief from the judgment. The district court construed this as a

motion for reconsideration of its November 6, 1996 order and denied

the motion on April 14, 1997. In No. 97-30424, Fisher appeals the

district court’s order issued on April 14, 1997. The appeals have

been consolidated. We affirm.

I. BACKGROUND

A. Factual Background

In August 1990, a U.S. Customs confidential informant 

contacted Leeverne Fisher regarding the smuggling of approximately

1200 pounds of marihuana from Jamaica to the United States. The

confidential informant introduced a U.S. Customs agent to Fisher

and a Jamaican individual known as “Cappi”, telling Fisher and

Cappi that the Customs agent was a source of transportation and a

potential financier for the marihuana smuggling venture. The

Customs agent was advised that Fisher and Cappi had access to large

quantities of marihuana in Jamaica. The three made preliminary

plans at that time. Later, they determined that Fisher would

provide the drop-site, off-load crew and storage facility for the

marihuana. Fisher and the Customs agent made several trips to

locate a drop-site. They eventually agreed on a tract of land in

Anson County, North Carolina to serve as a drop-site.

In early December 1990, the Customs agent told Fisher that he

would not be able to finance the venture; however, the Customs
3

agent also said that he had been contacted by another individual

who requested that he transport a large quantity of marihuana into

the United States. The Customs agent requested the use of the

drop-site, off-load crew and storage facility in Anson County,

North Carolina that Fisher had arranged for the venture originally

proposed. Fisher subsequently agreed to this arrangement. 

On January 3, 1991, the officers circled the property where

the drop was to occur. As bales from the drop hit the ground,

individuals began retrieving what they believed to be marihuana. 

The agents then closed in and arrested everyone except for Fisher,

who fled the scene and remained a fugitive until his arrest on

September 24, 1992.

B. Procedural History

Fisher was indicted in North Carolina in January 1991. On

December 3, 1992, the case was transferred to the Eastern District

of Louisiana pursuant to Rule 20 of the Federal Rules of Criminal

Procedure. Fisher plead guilty on March 8, 1993, to conspiracy to

possess with the intent to distribute in excess of fifty kilograms

of marihuana. He was sentenced on June 30, 1993, to 115 months’

imprisonment, four years’ supervised release, and a $50 special

assessment. The Government subsequently requested, pursuant to

Rule 35(b) of the Federal Rules of Criminal Procedure, that the

court lower the sentence to reward Fisher for providing substantial

assistance to the Government. The court complied with this

request, and on July 29, 1993, the court resentenced Fisher to 103
4

months’ imprisonment and four years’ supervised release. Fisher

did not appeal.

Fisher filed two motions seeking leave to file an out-of-time

direct appeal, alleging that his attorney was ineffective and had

failed to file a notice of appeal despite Fisher’s requests that he

do so. The district court denied the motions and treated the

second motion as an appeal from its denial of the first motion. 

This court dismissed Fisher’s appeal, determining that Fisher’s

second motion could not be treated as a notice of appeal of the

district court’s denial of Fisher’s first motion. Because the

motion was an untimely attempt to appeal the sentence imposed on

July 29, 1993, this court lacked jurisdiction to entertain it.

Fisher filed a motion pursuant to 28 U.S.C. § 2255, alleging

that the district court failed to inform him of his right to appeal

and that counsel was ineffective for failing to perfect an appeal. 

The Government conceded that § 2255 relief was warranted. The

district court granted the § 2255 motion, vacated Fisher’s judgment

of conviction and sentence, resentenced Fisher to 103 months’

imprisonment and four years’ supervised release, and gave Fisher

ten days to file a notice of appeal.

Fisher filed a timely notice of appeal. He also filed a

motion for relief from the judgment pursuant to Federal Rule of

Civil Procedure 60(b), challenging his sentence on the basis that

he was not present for sentencing and challenging alleged

inaccuracies in the PSR. The district court denied the motion on

November 6, 1996, explaining that Fisher would have the opportunity
5

to present these issues on direct appeal. Fisher moved again for

relief from the judgment. The district court construed this as a

motion for reconsideration of the denial of Fisher’s Rule 60(b)

motion and denied the motion on April 14, 1997. Fisher appeals

that order. 

II. ANALYSIS

A. No. 97-30424 - Appeal from the District Court’s April 14, 1997

Order

We first address Fisher’s appeal from the district court’s

order issued on April 14, 1997. Although the Federal Rules of

Criminal Procedure do not explicitly authorize a motion for

rehearing of a district court order, this court has sanctioned the

use of motions for reconsideration in criminal proceedings. See

United States v. Cook, 670 F.2d 46, 48 (5th Cir. 1982). A motion

for reconsideration does not, however, extend the time for

challenging the district court’s order. “[I]n criminal

proceedings, petitions for rehearing of orders affecting final

judgment are timely filed if made within the period allotted for

the noticing of an appeal.” Id. (citations omitted).

Fisher’s second motion for relief from the judgment, which was

denied on April 14, 1997, challenged the Government’s response to

Fisher’s prior motion for relief from the judgment and raised

issues related to Fisher’s resentencing. Fisher timely appealed

from the order denying this motion. However, the motion itself was

not filed timely. It was filed on February 10, 1997, 138 days
6

after the September 1996 resentencing judgment and 96 days after

the November 6, 1996, order denying the previous motion for relief

from the judgment of resentencing. 

This motion filed on February 10, 1997, and denied on April

14, 1997, was “an unauthorized motion which the district court was

without jurisdiction to entertain.” United States v. Early, 27

F.3d 140, 142 (5th Cir. 1994) (defendant’s postjudgment motion for

reduction of sentence was unauthorized and without a jurisdictional

basis and did not extend the time for taking an appeal). The

motion cannot be considered a Federal Rule of Criminal Procedure 35

motion because the provisions of Rule 35 do not apply to this

situation. See id. at 141. Likewise, the motion does not satisfy

the criteria required by 18 U.S.C. §§ 3582, 3742. See id. at 142. 

The motion also cannot be considered a valid motion for

reconsideration of the denial of the first Rule 60(b) motion,

because it challenged the judgment of resentencing and was not

filed within ten days of the entry of the order denying the first

motion. See Cook, 670 F.2d at 48; see FED. R. APP. P. 4(b).

Fisher’s motion filed on February 10, 1997, was unauthorized. 

The district court was without jurisdiction to entertain this

motion. Fisher “has appealed from the denial of a meaningless,

unauthorized motion.” Early, 27 F.3d at 142. Although technically

the district court should have dismissed the motion for lack of

jurisdiction, we can affirm his denial of the motion. Id.

B. No. 96-31070 - Fisher’s Right to Be Present at the September 23,

1996 Sentencing
7

We now address the issues raised in Fisher’s direct criminal

appeal. First, Fisher contends that the district court erred in

resentencing him in abstentia, without the right of allocution, and

without representation by counsel. He contends that he wished to

present mitigating information to the district court before he was

resentenced. 

“The sentencing is, . . ., a critical stage of the proceedings

against the accused, at which he is constitutionally entitled to be

present and represented by counsel.” United States v. Huff, 512

F.2d 66, 71 (5th Cir. 1975) (citation omitted); See FED. R. CRIM. P.

43(a). “A defendant’s right to be present when the district court

alters his sentence depends on the type of action the district

court is taking.” United States v. Patterson, 42 F.3d 246, 248

(5th Cir. 1994). In this case, the district court did not

resentence Fisher. The court merely reinstated the judgment on the

docket sheet, following the grant of Fisher’s § 2255 motion, to

allow the appeal time to run anew. This procedure was approved in

Mack v. Smith, 659 F.2d 23, 26 (5th Cir. 1981). The district court

did not alter Fisher’s sentence. Fisher had the opportunity to

challenge the PSR at his sentencing hearing in 1993. He cannot

transform the grant of the § 2255 relief he requested into another

opportunity to raise sentencing issues in the district court. 

Fisher’s contentions are without merit.

C. Exculpatory Information 

Second, Fisher contends that the Government deprived him of

the right to due process of law by withholding exculpatory
 

2 United States v. Agurs, 427 U.S. 97, 103-07 (1976), extends

this disclosure requirement to cases in which the defendant does

not request the information.

8

information that would have affected his sentencing. Fisher

contends that the Government was aware of testimony obtained at his

codefendant’s trial which would have established that Fisher was

responsible for only 200 pounds of marihuana, not 1200 pounds. 

Fisher did not raise this issue in the district court at

sentencing or in his post-judgment motions. Therefore, review is

limited to plain error. See United States v. McDowell, 109 F.3d

214, 216 (5th Cir. 1997). Under Federal Rule of Criminal Procedure

52(b), this court 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, 730-

36 (1993)). If these factors are established, the court has

discretion to correct the forfeited error, and the court will not

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. 

Olano, 507 U.S. at 736.

A defendant’s right to due process is violated when, upon

request for exculpatory evidence, the Government conceals evidence

that is both favorable to the defendant and material to the

defendant’s guilt or innocence. Brady v. Maryland, 373 U.S 83, 87-

88 (1963).2 “The evidence is material if there is a reasonable

probability that, had the evidence been disclosed to the defense,
9

the result of the proceeding would have been different.” United

States v. Stephens, 964 F.2d 424, 435-36 (5th Cir. 1992)(internal

quotation and citation omitted). A reasonable probability is “a

probability sufficient to undermine confidence in the outcome.” 

United States v. Bagley, 473 U.S. 667, 682 (1985).

The Government contends, inter alia, that there was no Brady

violation because Fisher entered a valid guilty plea, admitting his

involvement with the 1200-pound figure established in the PSR. We

agree. Fisher pleaded guilty to a charge of conspiracy to possess

with intent to distribute in excess of 50 kilograms of marihuana. 

The Government stated in the factual basis for the plea that Fisher

was involved in negotiations to air drop 1200 pounds of marihuana. 

Fisher had no complaints about the Government’s factual basis and

he admitted that the factual basis was true. The PSR calculated

Fisher’s base offense level on the 1200 pound figure. Fisher did

not file objections to the PSR and he did not object at sentencing. 

Fisher does not explain how the testimony at his codefendant’s

trial supports his claim that he should be held responsible for

only 200 pounds of marihuana. Fisher has not established a Brady

violation.

Fisher also contends that the Government withheld information

in violation of the Jencks Act. Under the Jencks Act, the

Government must produce any “‘statement . . . of the witness in the

possession of the United States which relates to the subject matter

as to which the witness has testified.’” United States v. Fragoso,

978 F.2d 896, 899 (5th Cir. 1992) (quoting 18 U.S.C. § 3500(b)). 
10

Fisher does not identify any specific statements which the

Government may have withheld. To the extent that he is reasserting

a violation due to the Government’s failure to produce the

transcript from his codefendant’s trial, his contention is without

merit.

D. Quantity of Marihuana

Third, Fisher contends that his sentence should have been

based on only 200 pounds of marihuana. He contends that he agreed

to sell only 200 pounds and he had no intention of, nor capability

of, producing or distributing 1200 pounds. He also contends that

the district court should have made a finding regarding the

quantity of drugs.

A district court’s determination of the quantity of drugs

attributable to the defendant for purposes of calculating a

defendant’s offense level is a factual finding that is reviewed for

clear error. United States v. Vine, 62 F.3d 107, 109 (5th Cir.

1995). However, because Fisher did not raise this issue in the

district court, our review is limited to plain error. See FED. R.

CRIM. P. 52(b); see Calverley, 37 F.3d at 162-64.

When an offense involves negotiation to traffic in a

controlled substance, the weight under negotiation in an

uncompleted distribution shall be used to calculate the applicable

amount, except the court shall exclude any amount it finds that the

defendant did not intend to produce or was not reasonably capable

of producing. U.S.S.G. § 2D1.1, comment. (n. 12)(1992); see United

States v. Davis, 76 F.3d 82, 85-86 (5th Cir. 1996) (court may
11

attribute to defendant the amount of an unconsummated transaction,

unless the defendant did not intend or was not reasonably capable

of producing that amount). A defendant who participates in a drug

conspiracy is accountable for the quantity of drugs attributable to

the conspiracy and reasonably foreseeable to him. U.S.S.G. §

1B1.3(a)(1)(B).

The PSR is considered reliable evidence for sentencing

purposes. United States v. Vital, 68 F.3d 114, 120 (5th Cir.

1995). A district court may adopt facts contained in the PSR

without further inquiry if there is an adequate evidentiary basis

and the defendant does not present rebuttal evidence. United

States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). The

defendant bears the burden of proving that the information is

“materially untrue, inaccurate, or unreliable.” United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991).

The PSR provided that Fisher contacted a U.S. Customs

confidential informant (CI) regarding the smuggling of 1200 pounds

of marihuana by plane from Jamaica. Fisher offered to provide the

drop-site, the crew and the storage facility. He made several

trips with the CI and a Customs Agent to find a drop-site, and a

site was selected. The agent subsequently changed the plans,

informing Fisher that he could not provide the money for the

smuggling venture. The agent mentioned, however, that he knew

someone who wanted to use the drop-site to transport a large

quantity of marihuana into the United States. Fisher indicated

that the prior chosen drop-site would be available and that they
12

could store 1000 to 1500 pounds of marihuana there. Fisher was

present at a meeting where diagrams of the drop-site were provided. 

On the night of January 3, 1991, Government officers dropped bales

of purported marihuana at the site. Fisher’s codefendants were

apprehended that night; Fisher fled. The PSR contained all of this

information.

The information in the PSR demonstrates that the drug

conspiracy involved at least 1200 pounds of marihuana and that

Fisher intended to complete the transaction. Fisher did not

present evidence that he was incapable of completing his part of

the transaction. Additionally, Fisher admitted his involvement at

rearraignment, and he admitted his guilt to the probation officer

and to the judge at sentencing. The district court did not err in

basing Fisher’s offense level on 1200 pounds of marihuana.

E. Reduction in Offense Level for Pleading Guilty

Fourth, Fisher contends that the district court erred in not

reducing his offense level by three points for acceptance of

responsibility, because he plead guilty before the Government began

preparing for trial. Because Fisher did not raise this issue

before or during sentencing, this court’s review is limited to

plain error. See FED. R. CRIM. P. 52(b); see Calverley, 37 F.3d at

162-64.

“If a defendant ‘clearly demonstrates acceptance of

responsibility for his offense,’ the sentencing guidelines instruct

the district court to decrease the defendant’s offense level by two

and possibly three points.” United States v. Tremelling, 43 F.3d
13

148, 152 (5th Cir. 1995) (citation omitted); U.S.S.G. § 3E1.1(a)

and (b). This court affords deference to a district court’s

finding on the reduction for acceptance of responsibility. See

United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994).

The district court reduced Fisher’s offense level by two

points for acceptance of responsibility, pursuant to U.S.S.G. §

3E1.1(a). Section 3E1.1(b) sets forth a three-part test to

determine whether a defendant is entitled to an additional onelevel reduction. United States v. Mills, 9 F.3d 1132, 1136 (5th

Cir. 1993). The sentencing court is directed to grant the

additional decrease if (1) the defendant qualifies for the basic

two-level decrease for acceptance of responsibility under

§ 3E1.1(a); (2) the defendant’s offense level is sixteen or higher

before the two-level reduction under § 3E1.1(a); and (3) the

defendant “assisted authorities” by either (a) timely providing

complete information to the Government concerning his own

involvement in the offense; or (b) timely notifying authorities of

his intention to enter a guilty plea, thereby permitting the

Government to avoid preparing for trial and permitting the court to

allocate its resources efficiently. United States v. Tello, 9 F.3d

1119, 1124-25 (5th Cir. 1993). If the defendant satisfies all

three prongs of the test, the district court must grant the

additional one-level decrease. Mills, 9 F.3d at 1138-39.

Fisher satisfied the first two elements of § 3E1.1(b). He

contends that he satisfied the third element by pleading guilty. We

disagree. Section 3E1.1(b)(2) “defines timely acceptance in
 

3 The Government’s argument that Application Notes 1(d) and 3

support the denial of the additional reduction is not convincing. 

Application Notes 1 and 3 apply to § 3E1.1(a), not § 3E1.1(b). 

Although the district court could have denied Fisher any reduction

for acceptance of responsibility because he remained a fugitive for

20 months after he was indicted, see United States v. Chapa-Garza,

62 F.3d 118, 122-23 (5th Cir. 1995), it did not do so. We do not

decide today whether, under the circumstances, the district court

had the discretion to deny

the additional one-point reduction based on the defendant’s status

as a fugitive. Our decision that the court did not err in refusing

14

functional, not exclusively temporal, terms.” United States v.

Williams, 74 F.3d 654, 656 (5th Cir. 1996) (citations omitted). 

The defendant is entitled to the additional reduction for pleading

guilty only if the two goals of the provision are fulfilled: “(1)

the government avoids needless trial preparation, and (2) the court

is able to allocate its resources efficiently.” Williams, 74 F.3d

at 656. Application Note 6 provides in pertinent part, “[T]o

qualify under subsection (b)(2), the defendant must have notified

authorities of his intention to enter a plea of guilty at a

sufficiently early point in the process so that the government may

avoid preparing for trial and the court may schedule its calendar

efficiently.” U.S.S.G. § 3E1.1, comment. (n.6)(1992). 

The probation officer refused to recommend the additional

level decrease, because Fisher remained a fugitive for twenty

months before pleading guilty. By the time Fisher was arrested,

all of his coconspirators had been convicted and the Government had

already prepared for trial. Accordingly, the two goals of

subsection (b)(2) were not fulfilled. See Williams, 74 F.3d at

656. The district court did not err in refusing to grant the

additional reduction in offense level.3 
to grant the additional one-point reduction is based on the fact

that the Government had already prepared for trial when Fisher

plead guilty, not on the notion that Fisher’s remaining a fugitive

is inconsistent with an acceptance of responsibility. 

15

F. Validity of Fisher’s Conviction

Fifth, Fisher contends that his conviction is invalid because

the district court lacked jurisdiction to convict him of possession

with intent to distribute a controlled substance. He asserts that

the Government produced and dropped bales of hay, not marihuana. 

We note that Fisher was not convicted of possession with intent to

distribute a controlled substance in violation of 21 U.S.C. §

841(a)(1). Rather, he was convicted of conspiracy to possess with

intent to distribute in excess of fifty kilograms of marihuana in

violation of 21 U.S.C. § 846, which provides that “[a]ny person who

attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those

prescribed for the offense, the commission of which was the object

of the attempt or conspiracy.” The elements of conspiracy to

possess with intent to distribute marihuana are: “(1) the existence

of an agreement to possess marihuana with the intent to distribute,

(2) knowledge of the agreement, and (3) voluntary participation in

the agreement.” United States v. Cortinas, 142 F.3d 242, 249 (5th

Cir. 1998)(citation omitted). The Government need not prove an

overt act in furtherance of the conspiracy. United States v. Ross,

58 F.3d 154, 159 n.7 (5th Cir. 1995). The evidence supports the

finding that there was an agreement to possess marihuana with the

intent to distribute it, Fisher had knowledge of the agreement, and
16

Fisher voluntarily participated in the agreement. It is not

necessary to prove that the substance dropped was actually a

controlled substance. Fisher’s contention is without merit.

G. Ineffective assistance of counsel

Sixth, Fisher contends that his trial attorney provided

ineffective assistance because he failed to investigate, and object

to, the drug quantity established by the PSR. Fisher asserts that

his counsel did not put the Government’s case to adversarial

testing and that his counsel stood silent at sentencing. Fisher

contends that his counsel failed to request Brady material; failed

to object to the district court’s jurisdiction; failed to object to

the PSR prior to, and at sentencing; and failed to move for an

additional one-point reduction under U.S.S.G. § 3E1.1 for

acceptance of responsibility. Finally, Fisher contends that his

counsel failed to assert that Fisher was entitled to a three-point

reduction under U.S.S.G. § 2X1.1(b) for merely attempting to

complete the object of the conspiracy. 

The general rule in this circuit is that a claim of

ineffective assistance of counsel cannot be resolved on direct

appeal when the claim has not been raised before the district

court, since no opportunity existed to develop the record on the

merits of the allegations. United States v. Navejar, 963 F.2d 732,

735 (5th Cir. 1992). Fisher has not raised, and the record has not

been developed on, these issues. Therefore, we decline to address

Fisher’s ineffectiveness claim in this direct appeal.
17

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order issued on April 14, 1997 (No. 97-30424); and we AFFIRM the

defendant’s conviction and sentence (No. 96-31070).