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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-40440

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARLON LEKEITH WILLIAMS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

USDC No. 6:95-CR-36-42

_________________________________________________________________

March 14, 1997

Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Marlon Lekeith Williams appeals his sentence for conspiracy to

manufacture, possession with intent to distribute, and distribution

of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. He

argues that the government failed to prove that the cocaine base

was “crack” rather than another form of cocaine base, that the

district court erred in calculating the amount of drugs
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attributable to him, and that the district court miscalculated his

criminal history category.

The Presentence Investigation Report (“PSR”) attributed 50.64

grams of cocaine base to Williams. Williams objected to the amount

of drugs attributable to him but apparently offered no evidence in

support of his assertion that the stated amount was unwarranted in

the light of the evidence. See United States v. Alfaro, 919 F.2d

962, 966 (5th Cir. 1990) (holding that “unsworn assertions do not

bear ‘sufficient indicia of reliability to support [their] probable

accuracy,’ and, therefore, should not generally be considered by

the trial court in making its factual findings” under sentencing

guidelines but that “presentence report[s] generally bear[]

sufficient indicia of reliability” for that purpose). Williams

again asserts, before this court, that the PSR attributed to him

excessive quantities of cocaine base. Williams, however, fails to

point to any probative evidence demonstrating that the district

court clearly erred in adopting the PSR recommendation. Instead,

he merely asserts that the testimony of his co-conspirator, who

attributed approximately fifteen of the fifty plus grams of cocaine

base to him, was uncorroborated and unreliable. On this basis, we

cannot say that the decision of the trial court to adopt the PSR

was clearly erroneous. See Alfaro, 919 F.2d at 965-66; see also
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United States v. Sherbak, 950 F.2d 1095, 1099-1100 (5th Cir. 1992)

(holding “when a defendant objects to his PSR but offers no

rebuttal evidence to refute the facts, the district court is free

to adopt the facts in the PSR without further inquiry”).

Furthermore, Williams pleaded guilty to an offense that he

acknowledged carried a statutory mandatory minimum sentence of ten

years. He does not contest the validity of that plea and cannot

therefore contest the mandatory sentence imposed. 

Williams pleaded guilty to conspiracy to possess and

distribute cocaine base in violation of 21 U.S.C. § 846. He did

not object at the district court to the classification of the

substance involved as cocaine base. On appeal, however, Williams

argues that his sentence was erroneously based upon the sentencing

guidelines for “crack” cocaine, which he contends do not apply to

all forms of cocaine base. Williams, however, was sentenced to the

statutory minimum sentence for violations of 21 U.S.C. § 846

involving 50 or more grams of a substance or mixture containing

cocaine base. See 21 U.S.C. § 841(b)(1)(A). Thus, the statutory

minimum sentence applies to the offense to which Williams pleaded

guilty, and the distinction between “crack” cocaine and other

cocaine bases is not relevant. See United States v. James, 78 F.3d

851, 858 (3d Cir. 1996). 
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The trial court sentenced Williams under 21 U.S.C.

§ 841(b)(1)(A), which requires a mandatory minimum sentence of ten

years for violations of § 841(a) or § 846 involving 50 grams or

more of a substance or mixture containing cocaine base. Williams

received the mandatory minimum sentence for the offense to which he

pleaded guilty and thus, any error in the calculation of his

criminal history category is harmless. See Williams v. United

States, 503 U.S. 193, 203 (1992); Fed. R. Crim. P. 52(a); U.S.S.G.

§ 5G1.1(b).

A F F I R M E D.