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

                                                 FILED
                                                                    June 29, 2009
                                  No. 08-10850
                                Summary Calendar                Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee

v.

SPECK ARON ROSS,

                                              Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:08-CR-24-ALL


Before DAVIS, BARKSDALE, and PRADO, Circuit Judge.
PER CURIAM:*
       Speck Aron Ross appeals his sentence following his guilty plea conviction
for   possession    with   intent   to   distribute   more   than   five   grams    of
methamphetamine (actual) in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B) and
possession of a firearm in furtherance of a drug-trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A)(i). Ross argues that the district court’s determination
of the amount of methamphetamine attributable to him was clearly erroneous



       *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-10850

because the district court mischaracterized statements made by one of Ross’s
customers. He further argues that the district court clearly erred when it denied
him an acceptance of responsibility reduction.
      A district court’s calculation of the quantity of drugs involved in an offense
is a factual finding that is entitled to considerable deference and will be reversed
only if clearly erroneous. United States v. Betancourt, 422 F.3d 240, 246 (5th
Cir. 2005). A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole. Id.
      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.” § 2D1.1,
comment. (n. 12). When calculating the total drug amounts attributable to a
defendant through his course of conduct, direct evidence is unnecessary.
Betancourt, 422 F.3d at 246-47. Drug estimates may be calculated based on
extrapolating from “any information that has sufficient indicia of reliability to
support its probable accuracy . . . even hearsay.” United States v. Valdez, 453
F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted).
A presentence report (PSR) generally bears sufficient indicia of reliability to be
considered at sentencing. United States v. Cabrera, 288 F.3d 163, 173-74 (5th
Cir. 2002). The defendant bears the burden of demonstrating by competent
rebuttal evidence that the information in the PSR relied on by the district court
is materially untrue. United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
      According to the PSR, a customer of Ross told investigators in a videotaped
interview taken in June 2007 that, from the summer of 2005 through November
2006, she purchased from Ross four ounces of methamphetamine twice a week
for “[p]robably a month,” six to eight ounces twice a week for “a couple of
months[,] [m]aybe a little more,” and one to two pounds per week for the next
nine to 12 months. At sentencing, Ross offered the testimony and reports of a

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private investigator who interviewed the customer and Ross, among others, in
July 2008. The private investigator testified that the customer told him that her
dealings with Ross lasted from November 2005 through November 2006; she
purchased from Ross quarter pounds of methamphetamine in the beginning and
later moved to one-pound purchases; and she dealt with Ross once per week,
with occasional breaks. The private investigator further testified that, according
to Ross, his dealings with that customer occurred twice per month from March
2006 though August 2006, and he only dealt in quarter pounds of
methamphetamine. The district court acknowledged the inconsistencies, found
the customer’s statements from her interview with investigators to be “more
reliable,”   and   held   Ross   responsible   for   a   conservative   amount   of
methamphetamine based on the customer’s earlier statements, as set forth in
the PSR.
      A witness’s inconsistent statements do not lack a sufficient indicia of
reliability per se, although inconsistent statements do raise a credibility
question. See United States v. Ramirez, 963 F.2d 693, 708 (5th Cir. 1992).
However, it is within the province of the district court to determine the
credibility of witnesses. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir.
2000).
      Ross 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
Ross was held accountable. See Betancourt, 422 F.3d at 246
      Ross also argues that the district court erred when it denied him an
acceptance of responsibility reduction pursuant to § 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

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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 Ross an acceptance of responsibility reduction
because Ross denied relevant conduct and minimized his role in the offense. In
particular, the sentencing transcript reflects that the district court believed that
Ross directed his girlfriend to assist him in distributing methamphetamine and
collecting proceeds therefrom. Ross has consistently denied this finding and the
finding as to drug quantity. Although Ross is not required to affirmatively admit
relevant conduct, Ross 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.
      Accordingly, the judgment of the district court is AFFIRMED.




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