                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                      JANUARY 13, 2012
                                            No. 11-10036
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                          D.C. Docket No. 8:10-cr-00098-EAK-TBM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                               versus

REYNALDO PEREZ,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

                                            No. 11-10037
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 8:10-cr-00098-EAK-TBM-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,
                                                versus

JESUS CARREON, III,

llllllllllllllllllllllllllllllllllllllll                        Defendant-Appellant.

                                     ________________________

                          Appeals from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (January 13, 2012)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

         Reynaldo Perez and Jesus Carreon, III, appeal their 235-month sentences for

conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii), and possession with intent

to distribute 5 kilograms or more of cocaine, in violation of § 841(a)(1),

(b)(1)(A)(ii), and 18 U.S.C. § 2. On appeal, both defendants argue that the district

court erred by (1) incorrectly determining the drug quantities attributable to them,

and (2) failing to apply a two-level reduction for acceptance of responsibility to

each of their sentences. Perez also challenges the district court’s imposition of the




                                                   2
obstruction of justice enhancement to his sentence.1 Upon review of the record

and consideration of the parties’ briefs, we affirm.

                                       I. Drug Quantities

       “We review de novo the application of the sentencing guidelines and

findings of fact for clear error.” United States v. Louis, 559 F.3d 1220, 1224 (11th

Cir. 2009). We also review a district court’s finding of drug quantity for clear

error. United States v. Smith, 240 F.3d 927, 930-31 (11th Cir. 2001). The

government bears the burden of establishing drug quantity by a preponderance of

the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).

       When the drug amount that is seized does not reflect the scale of the

offense, the court must approximate the drug quantity. United States v. Frazier, 89

F.3d 1501, 1506 (11th Cir. 1996) (citing U.S.S.G. § 2D1.1, comment (n.12)). In

making this determination, the court may rely on “the price generally obtained for

the controlled substance . . . [and] similar transactions in controlled substances by

the defendant,” U.S.S.G. § 2D1.1, comment (n.12), and “evidence showing the

average frequency and amount of a defendant’s drug sales over a given period of



       1
         Carreon adopted to the extent applicable Perez’s brief on appeal, but Perez’s brief
regarding the obstruction of enhancement only applied to Perez, so Carreon’s adoption of that
portion of the brief did not suffice to raise an argument regarding the district court’s imposition
of the enhancement to his sentence.

                                                  3
time.” Frazier, 89 F.3d at 1506. This determination “may be based on fair,

accurate, and conservative estimates of the quantity of drugs attributable to a

defendant . . . [but it] cannot be based on calculations of drug quantities that are

merely speculative.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.

1998). We accord substantial deference to a sentencing court’s credibility

determinations in assessing drug quantity. See United States v. Clay, 483 F.3d

739, 744 (11th Cir. 2007).

      Here, in determining that Carreon was responsible for greater than 50

kilograms of cocaine, the district court considered the three previous transactions

Carreon admitted to participating in. Carreon admitted that payment from his

previous deliveries ranged from $300,000 to $1 million, and, without objection,

the probation officer stated at the sentencing hearing that $300,000 converts to 15

kilograms of cocaine. Thus, even considering only one of Carreon’s previous

admitted deliveries of cocaine and using a calculation based on the lowest

payment range that Carreon provided, this amount (15 kilograms), along with the

40 kilograms that were seized during Carreon’s arrest, is above the 50 kilogram

drug quantity necessary to establish a base offense level of 36. As to Perez, he

previously admitted to making another cocaine delivery for which he was paid

$3,000, the same amount he was paid for the trip during which the 40 kilograms of

                                           4
cocaine was seized, and that since he was paid the same amount, he believed that

the same amount of cocaine was being delivered during the previous trip. Adding

the 40 kilograms from the previous delivery to the 40 kilograms seized during

Perez’s arrest yields an attributable amount over the 50 kilogram quantity

necessary to establish a base offense level of 36. Because the evidence supports

the finding that both defendants were responsible for at least 50 kilograms of

cocaine, the district court did not clearly err in determining drug quantity.

                      II. Obstruction of Justice Enhancement

      We review a district court’s factual findings for an obstruction of justice

enhancement based on perjury for clear error, and we accord great deference to the

credibility determinations made by the court. United States v. Singh, 291 F.3d

756, 763 (11th Cir. 2002). Pursuant to U.S.S.G. § 3C1.1, a defendant’s sentence

may be enhanced by two levels if he (1) “willfully obstructed or impeded ‘the

course of the investigation, prosecution, or sentencing of the instant offense of

conviction,’ and (2) the obstructive conduct related to either the offense of

conviction or any relevant conduct.” United States v. Frasier, 381 F.3d 1097,

1099 (11th Cir. 2004) (quoting U.S.S.G. § 3C1.1). Committing perjury and

“providing materially false information to a judge or magistrate judge” constitute

an obstruction of justice under § 3C1.1. U.S.S.G. § 3C1.1, comment (n.4(b), (f)).

                                          5
       When applying an obstruction of justice enhancement, the district should

make specific findings as to each allegation of obstruction by identifying each

materially false statement. Singh, 291 F.3d at 763. However, “we may affirm a

district court’s enhancement even absent particularized findings regarding the

defendant’s perjury so long as the district court found in general that the

defendant’s testimony was perjurious as to material matters and the record

supports that finding.” United States v. Hatney, 80 F.3d 458, 463 (11th Cir.

1996).

       Perez’s sole argument with respect to the obstruction of justice enhancement

is that the district court erred in failing to make an independent factual finding that

he gave perjured testimony on a material matter.2 Perez, however, never requested

any particularized findings regarding the perjurious statements at the sentencing

hearing. “Having failed to do so, [Perez] cannot now complain to this court.”

United States v. Hubert, 138 F.3d 912, 915 (11th Cir. 1998). Moreover, the

district court made an express finding that Perez intentionally obstructed justice

and committed perjury in front of the magistrate judge, and this finding was


       2
          In his reply brief, Perez also argues that any inconsistencies between his statements at
the plea colloquy and his post-arrest statements are immaterial. But because Perez failed to raise
this argument in his initial brief, it is deemed waived. In re Egidi, 571 F.3d 1156, 1163 (11th
Cir. 2009) (“Arguments not properly presented in a party's initial brief or raised for the first time
in the reply brief are deemed waived.”).

                                                  6
supported by the record, as Perez’s testimony at the change of plea hearing

conflicts with his post-arrest statements regarding his knowledge about the

involvement of another individual in the drug trafficking scheme. The district

court, therefore, did not clearly err in enhancing Perez’s sentence based on a

finding that he obstructed justice.

                         III. Acceptance of Responsibility

      The district court’s determination of acceptance of responsibility is

reviewed for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th

Cir. 2005). Section 3E1.1 allows for a defendant’s offense level to be decreased

by two levels if he “clearly demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1. “[A] defendant who falsely denies . . . relevant

conduct that the court determines to be true has acted in a manner inconsistent

with acceptance of responsibility.” Id., comment (n.1(A)). Additionally, when a

defendant’s sentence has been enhanced under § 3C1.1 for obstruction of justice,

this ordinarily indicates that he has not accepted responsibility for his criminal

conduct, although there may be extraordinary cases in which both § 3C1.1 and

§ 3E1.1 may apply. U.S.S.G. § 3E1.1, comment. (n.4).

      Here, the district court found that the defendants falsely denied relevant

conduct when they both denied delivering at least 50 kilograms of cocaine.

                                          7
Further, that the defendants’ sentences were properly enhanced under § 3C1.1 for

obstruction of justice indicates that they had not accepted responsibility, despite

pleading guilty, and the defendants failed to offer any evidence demonstrating that

this was an extraordinary case in which both § 3C1.1 and § 3E1.1 should apply.

The district court, therefore, did not clearly err in refusing to impose a 2-level

downward adjustment for acceptance of responsibility.

      AFFIRMED.




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