* Local Rule 47.5.1 provides: "The publication of opinions that

hav e 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this opinion should not be published. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-40205

(Summary Calendar)

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT JOE KIMBLE,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

For the Eastern District of Texas

(4:94 CR 505)

_______________________________________________

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 t o 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 of1 Under the 1994 Sentencing Guidelines, the district court

determin ed 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.

-2- crack cocaine. Kimble appeals his sentence and we affirm.

I

During a five month undercover oper ation at Kimble's home

agents made one hundred and six purchases of crack cocaine.

Undercove r 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 c ontinued 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, all eging that (1) the district

c ourt erred in determining the quantity of drugs attributable to

him through t he conspiracy for purposes of determining his base

level offense under the guidelines; and (2) the sentencing

guidelines violate his due process, equal pro tection, and Eighth2 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. I d. "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 h ad 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. S ee United States v. Tello

, 9 F.3d 1119, 1122

(5th Cir. 1993).

-3- Amendment rights.

II

Kimble contends that the district court improperly determined

the quantity of drugs that can be att ributed to him to determine

his base offense level. 2 The quantity of drugs reasonably

foreseeable to a defendant is a question of f act which we review

for clear error. 3 U nited 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); U nited States v. Angulo

, 927 F.2d 2 02,

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 f or 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 attributed4 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 defe ndant was directly involved, and drugs that can be attributed to the

defendant in a conspiracy as part of his 'relevant cond uct' under

§ 1B1.3(a)(1)(B) of the Guidelines." U nited 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 cr iminal 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

agreem ent and "reasonably foreseeable" to the defendant. C arreon

, 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." U nited 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. S ee United States v. Alfaro

, 919 F.2d

962, 966 (5th Cir. 1990) (quoting U.S.S.G. § 6A1.3 comment.).

-4- sal es 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 K imble's two direct sales to Cogwell. 5 In overruling

Kimble's objections to the PSR, the court e xplicitly found that6 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).

-5- 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 U nited 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 coconspirators' activities before he joined the conspiracy. C arreon

,

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 fam ily 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-

knowing that others, including hi s 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 evidenc e , 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 v iolates 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. U

nited 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), c ert.

denied

,

___ U.S.

___, 115 S. Ct. 529, 130 L. Ed. 2d 433 (1994)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 crac k 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).

-7- (acknowledging that the court has rejected due process, equal

protection, and vagueness challenges to the disparities between

p enalties 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.