IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30376 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEMARVIN DWIGHT BRACKEN, also known as Pudgy,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-60004-1 -------------------- November 26, 2002

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Demarvin Dewight Bracken (“Bracken”) appeals the sentence

imposed following his guilty-plea conviction for conspiracy to

distribute cocaine. Bracken asserts for the first time on appeal

that the district court erred in determining the quantity of crack

cocaine for which he was sentenced because the drug quantity

included amounts that were distributed prior to Bracken joining the

conspiracy.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. After adopting the determination in the presentence report

(“PSR”) that Bracken joined the conspiracy in “approximately” June

1995, it was not clear error for the district court to include as

relevant conduct drugs distributed in late May 1995. See United

States v. Calverley,

(5th Cir. 1994) (en banc).

Moreover, Bracken offered no evidence to rebut the PSR’s finding

that he was responsible for conspiring to distribute at least 1.5

kilograms of crack cocaine, the threshold amount which established

his base offense level pursuant to U.S.S.G. § 2D1.1(c)(1). Because

no rebuttal evidence was offered, the district court was free to

adopt the findings in the PSR with respect to drug quantity. See

United States v. Vital,

(5th Cir. 1995). Bracken

failed to meet his burden of showing that the information contained

in the PSR was materially untrue. See United States v. Davis,

(5th Cir. 1996).

AFFIRMED.

2