IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40309 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID BRYAN SPRATT,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:96-CV-216 - - - - - - - - - -

November 9, 1998

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

David Bryan Spratt, federal prisoner # 04999-078, appeals

the district court’s denial of his

motion to

vacate, set aside, or correct his sentence. On September 9,

1997, this court granted COA on the issue “whether counsel was

ineffective in advising Spratt to stipulate to a quantity of 137

marijuana plants without investigating whether fewer than 100 of

them had `roots, a root ball, or root hairs’ to qualify as

`plants’ under the sentencing guidelines.” Spratt argues that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-40309 -2-

his counsel’s performance was deficient in failing to argue that

some of the marijuana cuttings did not constitute “plants”

because they did not have roots, a root ball, or root hairs.

Spratt also argues that he was prejudiced by his counsel’s error

because his counsel’s stipulation that there were over 100 plants

caused him to be subject to a five-year mandatory minimum

sentence under

(b)(10(B)(vii). He contends that

but for his counsel’s error, he would have received a

significantly less harsh sentence. Spratt did not present any

evidence in the district court which established that some of the

marijuana did not have roots, a root ball, or root hairs and thus

did not constitute “plants” under § 2D1.1. There is only

speculation that some of marijuana did not constitute “plants”

under § 2D1.1. Therefore, Spratt has not demonstrated that he

was prejudiced by his counsel’s alleged error in stipulating to

the number of marijuana plants.

Spratt has filed a motion to remand the case to the district

court for an evidentiary hearing on this issue. Spratt has not

shown that an evidentiary hearing would add any additional

evidence to the record to support his claim as the marijuana has

been destroyed. Therefore, Spratt’s motion to remand the case

for an evidentiary hearing is DENIED.

AFFIRMED; MOTION TO REMAND CASE FOR EVIDENTIARY HEARING

DENIED.