IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40003 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY BROWN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:99-CR-36-2 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Jeffrey Brown appeals his sentence after pleading guilty to

distributing and possessing with intent to distribute

methamphetamine. Brown argues that the district court erred in

assessing a three-level enhancement under U.S.S.G. § 3B1.1(b)

because his criminal activity did not involve five or more

participants at any given time. Brown maintains that, although

his indictment included a drug-conspiracy charge, the substantive

drug offense to which he ultimately pleaded guilty did not

involve five or more participants. Brown also maintains that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40003 -2-

Government failed to prove by a preponderance of the evidence

that the enhancement was warranted.

Fifth Circuit precedent and the commentary to the sentencing

guidelines both make clear that a sentencing court, rather than

being limited to the four corners of the offense of conviction,

may consider relevant conduct in determining a defendant’s role

in the offense. See United States v. Patino-Cardenas,

(5th Cir. 1996); United States v. Mir,

(5th Cir. 1990); U.S.S.G. Ch. 3, Pt. B, intro. comment.

Because Brown’s offense conduct and relevant conduct involved at

least five participants, the district court did not err in

assessing a three-level enhancement under § 3B1.1(b). See United

States v. Ocana,

(5th Cir.), cert. denied,

(2000); United States v. Eastland,

(5th Cir. 1993). To the extent Brown challenges the

sufficiency of the evidence supporting the enhancement, his

argument is unavailing. See United States v. Fitzgerald,

(5th Cir. 1996)(stating that a presentence report

generally bears sufficient indicia of reliability to be

considered as evidence by the sentencing judge when making

factual determinations); Mir,

(stating that when

a defendant fails to present any rebuttal evidence to refute

facts in the presentence report, the district court is free to

adopt those facts without further inquiry).

AFFIRMED.