* 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.

1 The maximum statutory sentence for selling 1.56 grams of crack is 20 years. 21

U.S.C. § 841(b)(1)(C). 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10406

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARK ANTHONY DRIVER

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:06-CR-82-ALL

Before GARWOOD, GARZA and OWEN, Circuit Judges.

PER CURIAM:*

Mark Anthony Driver pleaded guilty to distributing approximately 1.56

grams of cocaine base contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and was

sentenced to 240 months of imprisonment,1to be served consecutively to his

undischarged state sentence, and a three-year term of supervised release.

United States Court of Appeals

Fifth Circuit

F I L E D

November 28, 2007

Charles R. Fulbruge III

Clerk
No. 07-10406

2 Based of Driver's Criminal History Category of VI and a Total Offense Level of 34

(between 150 and 500 grams of crack), his Guideline Imprisonment Range was between 262

and 327 months. U.S.S.G. § 5A, Sentencing Table. Since the guideline range was higher that

the maximum statutory term of imprisonment of 20 years, his guideline range was reduced to

240 months. U.S.S.G. § 5G1.1(a). Additionally, Driver's 240 month sentence would have been

within the guideline range even if the district court had found that he possessed as little as

fifty grams of crack. See U.S.S.G. § 5A, Sentencing Table (a Total Offense Level of 32 and a

Criminal History Category of VI produces a guideline range between 210 and 262 months). 

2

Driver argues that the district court clearly erred in basing its

determination of drug quantity on uncharged relevant conduct that was based

on unsworn hearsay allegations that did not have sufficient indicia of reliability

and were not sufficiently corroborated, in violation of due process. The district

court’s calculation of the quantity of drugs involved in an offense is a factual

determination reviewed for clear error. United States v. Betancourt, 422 F.3d

240, 246 (5th Cir. 2005). For guideline purposes, the district court found by a

preponderance of the evidence that, with the related conduct, Driver possessed

156.2 grams of crack.2 Considering Agent Coffindaffer’s testimony about the

reliability of the informants, and the corroborating testimony of Officers

Caruthers and Broadwater, the district court did not clearly err, and did not

violate due process, in finding that the information in the presentence report

concerning other quantities of crack possessed or sold by Driver was sufficiently

reliable. See United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993); United

States v. Young, 981 F.3d 184-86 (5th Cir. 1992).

Driver argues that the district court erred in holding him accountable for

uncharged relevant conduct that does not fall within the definition contained in

U.S.S.G. § 1B1.3. The district court’s finding is a factual determination reviewed

under the clearly erroneous standard. United States v. Vital, 68 F.3d 114, 118

(5th Cir. 1995). Driver was directly involved in the possession and sale of

additional quantities of crack cocaine during the fall and winter of 2005 at the

Bideker St. location, which was part of the same course of conduct under section
No. 07-10406

3 Driver did not testify at sentencing, but did allocute; in his allocution (unsworn) he

also denied relevant conduct.

3

1B1.3(a)(2). The district court did not clearly err in finding that this was

relevant conduct. See United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.

1992).

Driver argues that the district court clearly erred in denying him a

reduction in his offense level for acceptance of responsibility. He contends that

the district court never stated why it denied acceptance of responsibility. He

argues that the district court could not properly deny acceptance of

responsibility because he denied uncharged relevant conduct. This court accords

“great deference” to the sentencing court’s refusal to credit a defendant’s

acceptance of responsibility. Vital, 68 F.3d at 121. Having already determined

that the conduct of distributing additional quantities of crack was relevant

conduct, the district court’s denial of acceptance of responsibility for the reason

that Driver had falsely denied to the probation officer this relevant conduct is

entitled to this court’s “great deference.” See Vital, 68 F.3d at 120-21.3

AFFIRMED.