                       REVISED - August 12, 1999

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 98-50574
                         _____________________


UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

ANTHONY ALOZIE OGBONNA,

                                                   Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________

                            August 5, 1999

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Anthony Alozie Ogbonna appeals his convictions for involvement

in drug activity.     Ogbonna was convicted of conspiracy to possess

with intent to distribute heroin in violation of 21 U.S.C. § 846,

and possession with intent to distribute heroin in violation of 21

U.S.C. § 841(a)(1).    The conviction was the fruit of an extensive,

undercover investigation.     Ogbonna presents us with a handful of

arguments challenging his conviction and sentence.       We reject all

of his arguments and affirm both the conviction and sentence.



                                   I
      After learning about the existence of a drug ring in Austin,

Texas, Investigator Troy Officer went undercover in order to gain

information     about   the     conspiracy.          During       his    undercover

operations, Investigator Officer met with Ogbonna on multiple

occasions and engaged in multiple drug transactions.                    Ogbonna does

not dispute this, and for good reason:              the police obtained both

video and audio recordings of Ogbonna’s drug transactions.

      We briefly summarize Ogbonna’s known, drug-related activities

by   noting    that   Ogbonna    sold     over     440   grams     of    heroin   to

Investigator Officer; Ogbonna promised to sell Officer much larger

quantities     of   heroin;   Ogbonna     gave     Officer    a    semi-automatic

firearm; and Ogbonna informed Officer that he possessed hand

grenades.     These facts are not disputed on appeal.

      After a jury found Ogbonna guilty of the drug offenses, the

district court sentenced him to twenty-seven years in prison.

Pursuant to the Sentencing Guidelines, the district court based

this sentence on the amount of drugs involved, Ogbonna’s role in

the offenses, and Ogbonna’s possession of a dangerous weapon.

                                        II

      Before   addressing     the   merits    of    Ogbonna’s      arguments,     we

dispose of Ogbonna’s motion to file a supplemental pro se brief.

Ogbonna asks us to allow the filing of his pro se supplemental

brief even though his attorney has already filed what is clearly a




                                        -2-
competent brief on Ogbonna’s behalf.             We DENY Ogbonna’s motion to

file a pro se brief.1

     The     brief   submitted   by    Ogbonna    plainly   demonstrates    why

allowing the submission of a pro se brief should be discouraged

when the appellant is represented by counsel.                The argument in

Ogbonna’s supplemental brief relies on the defunct holding in

United   States      v.   Singleton,   144   F.3d   1343    (10th   Cir.   1998)

(“Singleton I”), rev’d en banc 165 F.3d 1297 (10th Cir. 1999).

Over one month before Ogbonna’s pro se brief was filed with our

court, the Tenth Circuit repudiated the holding and reasoning in

Singleton I. More importantly, our own court squarely rejected the

reasoning in Singleton I over two months before filing of the pro

se brief.     See United States v. Haese, 162 F.3d 359, 366-68 & n.2

(5th Cir. 1998).          The pro se brief omits any mention of these

subsequent cases.         There simply is no reason for the court to

entertain such frivolous arguments, which constitute sanctionable

conduct, when the appellant is represented by counsel.2

     1
      See Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996):

     [T]here is no constitutional right to hybrid representation
     [on appeal.]   Thus, when a criminal appellant accepts the
     assistance of counsel, but later objects to his attorney’s
     appeal strategy or preparation of the brief, the criminal
     appellant cannot then expect to be allowed to file a
     supplemental pro se brief. By accepting the assistance of
     counsel the criminal appellant waives his right to present pro
     se briefs on direct appeal.
         2
         Ogbonna’s counsel comes close to warranting sanctions
himself. Although he did not sign onto Ogbonna’s pro se brief, he
did file and sign the motion to file Ogbonna’s supplemental brief.




                                       -3-
                                    III

                                     A

      Ogbonna makes one argument for overturning his conviction. He

argues that the district court erred by allowing two pieces of

evidence into his trial:       evidence of the semi-automatic firearm

that Ogbonna gave to Officer and testimony of Ogbonna’s claimed

ability to procure hand grenades. We will not, however, even pause

to consider whether the district court abused its ample discretion

in allowing this weapons-evidence into a drug offense trial.           Any

error that may have occurred was surely harmless.            See United

States v. Green, No. 98-30484, 1999 WL 439438, at *4 (5th Cir.

June 30, 1999) (noting that if an abuse of discretion is found in

district court’s evidentiary ruling, the harmless error doctrine is

applied).   The other evidence of Ogbonna’s involvement in the drug

conspiracy was overwhelming and included both audio and video

recordings of his unlawful, drug-related conduct.

                                     B

      Ogbonna next makes four arguments attacking his sentence.

“We   review   de   novo   a   district   court’s   application   of   the

[Sentencing] Guidelines, but will reverse factual findings made




This motion was physically bound with the pro se brief itself.
Attorneys are not to file or give aid in filing briefs that base
their arguments on case law contrary to binding Fifth Circuit
precedent without mentioning the binding precedent.    Frivolous
arguments are not to be made to this court. See, e.g., Fed. R.
App. P. 38.




                                    -4-
during sentencing only if they are clearly erroneous.”       United

States v. Washington, 44 F.3d 1271, 1280 (5th Cir. 1995).

     First, Ogbonna argues that the district court clearly erred in

attributing at least one, but less than three, kilograms of heroin

to him for sentencing purposes.    He maintains that he should only

have 441.31 grams attributed to him for sentencing purposes because

that is the amount he actually sold to Investigator Officer.

Although Ogbonna concedes that he told Officer on several occasions

that he possessed and could acquire much more heroin (on one

occasion telling Officer that he had one kilogram available at that

time; on another occasion telling Officer that he could deliver two

kilograms without a problem), he now argues that he was incapable

of acquiring that much heroin.

     But for Ogbonna’s argument to succeed, he must extend his

argument further.   He must argue not only that he was incapable of

possessing an additional 560 grams (recall that he had already

delivered over 440 grams), but that he was not part of a conspiracy

that possessed 560 grams. See U.S.S.G. § 1B1.3(a)(1)(B)(discussing

relevant conduct of a conspirator for sentencing purposes); United

States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994) (discussing




                                  -5-
§ 1B1.3(a)(1)(B)).3     We conclude that the district court did not

err in attributing over 1 kilogram of heroin to Ogbonna.

                                       C

     Next, Ogbonna argues that the district court clearly erred in

finding   that   he   possessed   a   dangerous   weapon       during   a   drug

trafficking offense.      See U.S.S.G. § 2D1.1(b)(1).            The evidence

revealed that Ogbonna gave Investigator Officer a “Mac-10" semi-

automatic firearm and that Ogbonna told Officer that he had carried

a firearm during their first transaction.         Ogbonna now argues that

he did not give Officer the Mac-10 during a drug transaction.                 He

further argues, without any citation to support the proposition,

that “Officer’s testimony that [Ogbonna] told him he had a gun at

their first meeting three months earlier, without any evidence of

the actual gun, cannot support a two level enhancement.”                To the

contrary, a district court could find, by a preponderance of the

evidence, that a defendant possessed a firearm at a previous

meeting when, sometime later, that defendant tells an undercover

officer   that   he   possessed   a   firearm.    Such     a   conclusion     is

bolstered by evidence showing that the defendant had easy access to

firearms (as was shown when Ogbonna gave Officer the Mac-10).                The

    3
     Ogbonna relies on United States v. Davis, 76 F.3d 82, 85 (5th
Cir. 1996), for the proposition that a district court may not
attribute to a defendant the amount of drugs in an unconsummated
transaction if the defendant was not reasonably capable of
producing that amount. In Davis, however, we did not consider the
attributable drug amount in the context of a conspiracy. In that
case, the defendant only pled guilty to a violation of 21 U.S.C. §
841(a)(1) (possession with intent to distribute).




                                      -6-
district court did not clearly err in its finding of fact.                   The

enhancement under § 2D1.1(b)(1) was appropriate.

                                       D

     Ogbonna challenges the district court’s decision to enhance

his sentence under U.S.S.G. § 3B1.1(a):

     Based on the defendant’s role in the offense, increase
     the offense level as follows:

           (a) If the defendant was an organizer or leader of
           a criminal activity that involved five or more
           participants or was otherwise extensive, increase
           by 4 levels.

Ogbonna argues (1) that he was not an organizer or leader, and (2)

that the conspiracy did not involve five or more participants, nor

was it otherwise extensive.           After reviewing the evidence and

record of the case, we conclude that the district court did not

clearly err      in   making   the   factual   finding   that   the   criminal

activity   was    “otherwise    extensive”4    and   that   Ogbonna    was    an

organizer or leader.

                                       E

     Finally, in his last sentencing challenge, Ogbonna argues that

the district court erred in refusing to depart downward for what

Ogbonna describes as a classic case of sentencing entrapment.

Ogbonna claims that he was not predisposed to sell over 400 grams

of heroin to a willing buyer.          Only after the government agents


     4
      The transcript of the sentencing hearing indicates that the
district court relied on the “otherwise extensive” language in
§ 3B1.1 in overruling Ogbonna’s objection to this enhancement.




                                      -7-
goaded him on, continues Ogbonna’s argument, did he continue to

supply more heroin. Ogbonna argues that the government should have

arrested him after the first transaction, thus, cutting short his

criminal liability.          Ogbonna asked the district court to depart

downward from the otherwise applicable guideline range as allowed

by U.S.S.G. § 4A1.3. Ogbonna appeals the district court’s decision

to reject his request.

     We   do    not   have    appellate     jurisdiction   to   address   this

argument.      Under 18 U.S.C. § 3742(a), “[w]e have jurisdiction to

review a defendant’s challenge to a sentence only if it was imposed

in violation of law; was imposed as a result of a misapplication of

the sentencing guidelines; was the result of an upward departure;

or was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.”           United States v. DiMarco,

46 F.3d 476, 477 (5th Cir. 1995).           When a defendant makes a motion

for a downward departure under § 4A1.3, based on the defense of

sentence entrapment, we lack appellate jurisdiction to review the

district court’s disposition of the motion.           See United States v.

Morgan, 117 F.3d 849, 860-61 (5th Cir. 1997); United States v.

Jones, 102 F.3d 804, 809 (6th Cir. 1996); see also DiMarco, 46 F.3d

at 477 (stating that “claims challenging the discretionary denial

of downward departures do not fall within any of the categories




                                      -8-
listed in § 3742(a)”).    Ogbonna’s sentencing entrapment argument,

therefore, cannot provide grounds for reversing his sentence.5




                                  III

       For the foregoing reasons, both the conviction and sentence

are

                                                    A F F I R M E D.




      5
     Nothing in the record indicates that the district court based
its decision on an erroneous belief that it lacked the authority to
depart. See United States v. Landerman, 167 F.3d 895 (5th Cir.
1999):

       We have jurisdiction to review a district court’s
       decision not to depart downward from the guideline range
       only if the district court based its decision upon an
       erroneous belief that it lacked the authority to depart.
       Moreover, something in that record must indicate that the
       district court held such an erroneous belief.

Id. at 899 (citations omitted).




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