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

                                                                 FILED
                                                               October 23, 2008
                               No. 07-10810
                                    c/w                    Charles R. Fulbruge III
                               No. 07-10822                        Clerk
                             Summary Calendar


UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

LATOSHA JOHNSON

                                          Defendant-Appellant


                 Appeals from the United States District Court
                      for the Northern District of Texas
                          USDC No. 3:07-CR-67-ALL
                         USDC No. 3:06-CR-368-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Latosha Johnson appeals the 60-month concurrent sentences that she
received after she pleaded guilty to three counts of bank robbery as charged in
separate one and two-count indictments. Johnson argues that with respect to
the September 23, 2006, robbery the district court clearly erred when it



      *
      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should not be published and is not precedent except under the limited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.
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enhanced her offense level under U.S.S.G. § 2B3.1(b)(2)(F) on the basis that she
threatened the teller’s life.   Johnson contends that the statements in the
Presentence Report (PSR) in support of the § 2B3.1 enhancement lacked
sufficient indicia of reliability. She argues that “[i]n contrast, the research on
‘false memory’ raises the issue of whether the judge’s conclusion is ‘materially
untrue.’”
      Because Johnson did not present to the district court her argument about
false memory, it is subject to plain error review. See United States v. Green, 324
F.3d 375, 381 (5th Cir. 2003). With respect to the remainder of her argument,
this court reviews the district court’s application of the Guidelines de novo and
its fact finding for clear error. United States v. Conner, 537 F.3d 480, 489 (5th
Cir. 2008). “Unless the factual finding is implausible in light of the record as a
whole, it is not clearly erroneous.” United States v. Griffith, 522 F. 3d 607, 611-
12 (5th Cir.), cert. denied, --- S.Ct. ----, 2008 WL 2717574 (Oct. 6, 2008).
      The facts the district court relies on must have some indicia of reliability.
United States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991).              A PSR
“generally bears sufficient indicia of reliability to be considered as evidence by
the sentencing judge in making factual determinations required by the
sentencing guidelines.” United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.
2007). (internal quotation marks and citation omitted). The district court may
also rely on hearsay for sentencing purposes, provided that it is reliable. United
States v. Mathews, 178 F.3d 295, 303 (5th Cir. 1999). The defendant bears the
burden of demonstrating that the information that the district court relied on is
materially untrue. Trujillo, 502 F.3d at 357.
      The Government supplied evidence that Johnson made a death threat
when it presented the testimony of Officer Tooke that the victim teller told two
detectives immediately following the robbery that Johnson indicated that she
was armed. See Trujillo, 502 F.3d at 357. Johnson’s attempts to render this

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testimony unreliable by presenting her newly-raised theory of “false memory”
fails under a plain error analysis. On plain error review, this court may correct
the sentencing determination on Johnson’s “false memory” theory only if
(1) there is an error, (2) that is plain, meaning an error that is clear under
current law, and (3) it affects substantial rights. United States v. Peltier, 505
F.3d 389, 392 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). The decision
to correct the forfeited error is within the sound discretion of the court of
appeals, and this court should not correct the error unless it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id.
      Johnson’s mere assertion that it is “more likely that the victim teller’s
perception was in fact a mixing of fragments of memory events, both real and
imagined” than truth falls short of amounting to evidence that the victim-teller
in this case actually suffered from false memory. Accordingly, she fails to show
that the district court’s purported failure to intuit that the victim teller suffered
from “false memory” was error, clear or otherwise. Moreover, the district court
was entitled to credit Officer Tooke’s testimony regarding Johnson’s threat that
she was armed and to discredit Johnson’s testimony that she never made the
threat. See United States v. Perez, 217 F.3d 323, 331-32 (5th Cir. 2000). Given
Officer Tooke’s testimony that the victim-teller told the investigation officers
that Johnson said she was armed, the district court’s finding that she made the
threat is not clearly erroneous. See Griffith, 522 F.3d at 611-12. Thus, Johnson
fails to show that the district court erred when it enhanced her offense level
under § 2B3.1(b)(2)(F).
      Johnson also argues with respect to her September 23, 2006, and October
10, 2006, robbery convictions that she received ineffective assistance of counsel
because her trial lawyer failed to present a theory of “false memory.” Because
this court cannot fairly evaluate this claim from the record, it declines to
consider it without prejudice to Johnson’s right to raise it in a subsequent


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proceeding. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied
--- S.Ct. ----, 2008 WL 2463795 (Oct. 6, 2008); United States v. Higdon, 832 F.2d
312, 313-14 (5th Cir. 1987).
      Johnson argues that the district court erred when it refused to grant the
request for a § 5K.1 downward departure based on her substantial assistance
that she made in both cases. Johnson contends that, because the Guidelines are
merely advisory, the district court was not bound by § 5K1.1’s requirement that
a § 5K1.1 motion be filed by the Government. Although the Guidelines are
advisory only, the district court was required to compute a guidelines sentence.
See Gall v. United States, 128 S. Ct. 586, 596-97 (2007). The Guidelines
precluded the district court from granting Johnson’s § 5K1.1 motion based on
substantial assistance absent a Government motion. See § 5K1.1. Thus the
district court was not mistaken when it refused to grant Johnson’s motion, and
Johnson is not entitled to this court’s review of the denial of that motion. See
United States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).
      Johnson also argues that, with respect to the December 1, 2006, robbery,
the district court should have imposed a non-Guidelines sentence based on her
substantial assistance to the Government in arresting Terrence Smith. Johnson
has abandoned this argument with respect to her September 23 and October 10,
2006, robberies by failing to brief it adequately in that case. See United States
v. Torres-Aguilar, 352 F.3d 934, 936 n.2 (5th Cir. 2003). Post-Booker sentences
are reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Johnson does not argue, and the record does not reflect, that the district court
committed any procedural error in sentencing her. See Gall, 128 S. Ct. at 596-
97.   Moreover, the district court’s guidelines sentence was presumptively
reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462-63 (2008); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court extensively

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considered the § 3553(a) factors and Johnson’s arguments that Terrence Smith
coerced her into committing the robberies before concluding that her guidelines
sentence of 60 months was necessary.
      AFFIRMED.




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