UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40034 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRUCE A. HAMMOND,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-00-CV-191) _________________________________________________________________ October 15, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Bruce A. Hammond, federal inmate #76762-079, appeals, pro se,

the denial of his

motion. A certificate of

appealability was granted on the issue whether trial counsel

provided ineffective assistance by neglecting to challenge the

weight of the marijuana that was used to determine Hammond’s

sentence. At trial, counsel stipulated that the marijuana at issue

weighed approximately 762 kilograms.

In response to the §2255 motion, the Government conceded that

the weight of the plastic packaging and fabric softener sheets

should have been deducted. In denying the motion, the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. court allowed an eight percent reduction to account for the weight

of the packaging material and determined, for the reasons that

follow, that Hammond had not shown actual prejudice, i.e., Hammond

had not shown that, if counsel had challenged the weight, Hammond’s

sentence would have been significantly less harsh. The eight

percent reduction lowered the weight of the marijuana to 701.84

kilograms. To qualify for a lesser sentence, Hammond was required

to demonstrate that the weight of the marijuana was less than 700

kilograms. See U.S.S.G. §§ 2D1.1(c)(5) and (6).

In Glover v. United States,

(2001), the

Court held that the Strickland v. Washington,

(1984),

standard of actual prejudice applied in the sentencing context.

Therefore, Hammond was required to show there is a reasonable

probability that, but for counsel’s failure to challenge the weight

of the marijuana, his sentence would have been different. See

Strickland,

.

Hammond has not shown that the district court’s findings

concerning the weight of the marijuana at issue were clearly

erroneous. See United States v. Vital,

(5th Cir.

1995) (district court may rely on presentence report at sentencing

and adopt its findings without further consideration unless report

is rebutted by evidence); United States v. Faubion,

(5th Cir. 1994) (district court’s

findings are

reviewed for clear error). Hammond’s assertion that his sentence

would have been different if counsel had challenged the weight of

the marijuana is insufficient to establish ineffective assistance.

2 See Lincecum v. Collins,

(5th Cir.), cert.

denied,

(1992).

AFFIRMED

3