     Case: 14-11153      Document: 00513096976         Page: 1    Date Filed: 06/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                                June 29, 2015
                                    No. 14-11153
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CHARLES RAY HOOPER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-78-12


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Charles Ray Hooper pleaded guilty to conspiracy to possess with the
intent to distribute methamphetamine and was sentenced to 130 months of
imprisonment, to be followed by four years of supervised release. He now
appeals his conviction and sentence. Hooper argues that his guilty plea was
unknowing and involuntary because the Government withheld exculpatory
sentencing evidence regarding the amount of methamphetamine for which he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       Case: 14-11153     Document: 00513096976   Page: 2   Date Filed: 06/29/2015


                                   No. 14-11153

was accountable.        He contends that the Government’s withholding of this
evidence violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963).
Hooper’s guilty plea precludes him from raising a claim that the Government
failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963), and his argument is foreclosed by circuit precedent. See United
States v. Conroy, 567 F.3d 174, 178-79 (5th Cir. 2009); see also Orman v. Cain,
228 F.3d 616, 617 (5th Cir. 2000); Matthew v. Johnson, 201 F.3d 353, 361-62
(5th Cir. 2000). Hooper concedes this point and raises the issue solely to
preserve it for further possible review.
        Hooper also argues that the Government’s failure to provide exculpatory
sentencing information resulted in a denial of the effective assistance of
counsel.     To establish ineffective assistance, Hooper must show that his
counsel’s conduct was deficient and that it prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Because Hooper does not show that
counsel’s performance “fell below an objective standard of reasonableness,” he
does not show that he was denied the effective assistance of counsel. See id. at
688.
        Regarding the reasonableness of his sentence, Hooper challenges being
held responsible for conduct occurring prior to the date alleged in the
indictment. His argument fails. The district court determined that Hooper’s
relevant conduct includes acts dating from 2006. “Drug transactions occurring
before the precise time frame of the conspiracy for which a defendant is
convicted may be considered” as relevant conduct. United States v. McCaskey,
9 F.3d 368, 375 (5th Cir. 1993). Additionally, a district court’s assessment of
relevant conduct affects the calculation of a defendant’s criminal history score,
and the Guidelines explain that, for purposes of U.S.S.G. § 4A1.2(e)(2),




                                           2
    Case: 14-11153    Document: 00513096976     Page: 3   Date Filed: 06/29/2015


                                 No. 14-11153

“commencement of the instant offense” includes any relevant conduct under
U.S.S.G. §1B1.3. § 4A1.2, comment. (n.8).
      Challenging the amount of drugs for which he was held responsible at
sentencing, Hooper notes that the district court sustained his objections to the
drug quantity as set forth in the PSR but contends that counsel made an error
in calculation and that the appropriate offense level was two levels lower than
that argued at sentencing and determined by the district court. The error of
which Hooper complains regarding drug quantity was invited and should be
reviewed only for manifest injustice. See United States v. Rodriguez, 602 F.3d
346, 350-51 (5th Cir. 2010). Hooper has failed to satisfy this burden.
      Finally, Hooper argues that the district court erred in denying a
reduction for having a minor role in the offense. He contends that he was not
involved in the conspiracy after 2008, and therefore, he should have been
granted a two-level reduction for having less involvement during the time
frame covered by the indictment. The district court’s denial of a reduction for
a mitigating role is a factual finding reviewed for clear error. United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).         The determination of a
defendant’s role in the offense is made on the basis of all conduct within the
scope of relevant conduct. U.S.S.G. Ch. 3, Pt. B, intro. comment. Hooper does
not dispute that his actions during 2006-2007 would not qualify for a minor
role reduction. Because the district court found that Hooper’s relevant conduct
included the conduct in 2006 and 2007, Hooper fails to show that the district
court clearly erred in denying his request for a minor role adjustment. See
U.S.S.G. § 3B1.2, comment. (n.5); Villanueva, 408 F.3d at 203.
      The judgment of the district court is AFFIRMED.




                                       3
