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

                                                 FILED
                                                                            May 21, 2009
                                     No. 08-10647
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

CHINEDU LEONARD MOMAH

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-189-2


Before JONES, Chief Judge and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Chinedu Leonard Momah appeals the 235-month sentence imposed
following his guilty plea to possession of a controlled substance with intent to
distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B). On
appeal, Momah argues that the district court clearly erred in calculating the
drug quantity for which he was held accountable. Momah contends that he
should only be accountable for the amount of drugs in his possession at the time
he was arrested for the instant offense.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10647

      The district court should consider a defendant’s relevant conduct when
determining his base offense level under the Guidelines. U.S.S.G. § 1B1.3(a)(1).
When an amount of drugs seized “does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled substance.” U.S.S.G.
§ 2D1.1 cmt. n. 12. When approximating the amount of drugs involved, the
district court may consider any evidence which has “sufficient indicia of
reliability.” U.S.S.G. § 6A1.3, comment.; United States v. Manthei, 913 F.2d
1130, 1138 (5th Cir.1990). “[A] presentence report generally bears sufficient
indicia of reliability” to be considered at sentencing. United States v. Alford,
142 F.3d 825, 831-32 (5th Cir. 1998) (internal quotation marks and citation
omitted); U.S.S.G. § 6A1.3. The defendant bears the burden of demonstrating
by competent rebuttal evidence that the information relied on by the district
court is materially untrue. Id.
      The district court’s determination of the quantity of drugs for sentencing
purposes is a factual finding that we review for clear error. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir.2005). A factual finding is not clearly
erroneous so long as it is plausible in light of the record as a whole. Id.
      When determining the drug quantity for which Momah was accountable,
the district court adopted the findings of the Presentence Report (PSR) and the
Addenda to the PSR, which included findings that Momah should be accountable
for the equivalent of 13,389.6 kilograms of marijuana. This amount included the
quantity of drugs Momah possessed at the time of his arrest plus a cash
conversion.
      Momah did not sustain his burden of showing that the evidence the
district court relied on was materially untrue.      The district court’s factual
findings regarding drug quantity were plausible in light of the record as a whole.
Thus, the district court did not clearly err in calculating the drug quantity for
which Momah was held accountable.



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      Momah also argues that the district court erred when it denied him a two-
level acceptance of responsibility reduction pursuant to U.S.S.G.§ 3E1.1(a). The
defendant bears the burden of demonstrating that he is entitled to a reduction
under § 3E1.1. United States v. Perez, 915 F.2d 947, 950 (5th Cir. 1990). This
court “will affirm a sentencing court’s decision not to award a reduction under
U.S.S.G. § 3E1.1 unless it is without foundation.”        United States v. Solis,
299 F.3d 420, 458 (5th Cir. 2002) (internal quotation marks and citation
omitted).
      The district court denied Momah an acceptance of responsibility reduction
because Momah denied relevant conduct.            In particular, the sentencing
transcript reflects that the district court believed that Momah was involved in
more than just this one instance of transporting illegal drugs. Momah has
consistently denied this finding and the finding as to drug quantity. Although
Momah is not required to affirmatively admit relevant conduct, Momah denied
relevant conduct that the district court found to be true. See § 3E1.1, comment.
(n.1(a)) (A “defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility.”); United States v. Medina-Anicacio, 325 F.3d
638, 648 (5th Cir. 2003). Thus, the record provides a sufficient foundation for
the district court’s denial of an acceptance of responsibility reduction.
      Momah argues that the district court erred when it failed to grant him a
two-level reduction pursuant to U.S.S.G. §§ 2D1.1(b)(11) and 5C1.2(a)(5) based
on its finding that Momah did not truthfully provide the Government with all
the information and evidence he had concerning his offense and other related
drug offenses. Where, as here, a defendant has not objected to error in the
district court, plain error review applies. See United States v. Vonn, 535 U.S. 55,
59 (2002). To show plain error, the appellant must show an error that is clear
or obvious and that affects his substantial rights.      United States v. Baker,
538 F.3d 324, 332 (5th Cir. 2008). If the appellant makes such a showing, this

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court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      As previously stated, the district court did not err in finding that Momah
had not provided complete and truthful information regarding his involvement
with the transportation of illegal drugs. Therefore, the district court did not
plainly err in failing to apply § 2D1.1(b)(11)’s two point reduction.
      Momah further asserts that counsel was ineffective for failing to object to
the district court’s failure to grant a two point reduction pursuant to § 2D1.1.
We decline to address this claim of ineffective assistance on direct appeal
without prejudice to Momah’s right to bring it in a 28 U.S.C. § 2255 proceeding.
See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
      Lastly, Momah asserts that his sentence is substantively unreasonable.
This court reviews the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008).
      The district court articulated reasons for imposing a sentence within the
applicable guideline range. Statements at Momah’s sentencing hearing indicate
that the district court determined the 235-month sentence was necessary to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment and deterrence from further crime. Momah has not
shown that his sentence is unreasonable.
      Accordingly, the judgment of the district court is AFFIRMED.




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