     Case: 10-10431     Document: 00511529720         Page: 1     Date Filed: 07/05/2011




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

                                                                            FILED
                                                                            July 5, 2011
                                     No. 10-10431
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DOMMINIC KELLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CV-146-2


Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
        Domminic Kelley was convicted of one count of conspiracy to possess and
distribute crack cocaine and was sentenced to serve 225 months in prison and
a three-year term of supervised release. This court is now presented with his
appeal of this sentence. In his sole claim, he argues that the district court’s
calculation of the amount of drugs that should be used to determine his sentence
is erroneous because it was based solely on the uncorroborated statements of his
coconspirator. The district court’s drug quantity determination is a factual

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10431      Document: 00511529720   Page: 2   Date Filed: 07/05/2011

                                  No. 10-10431

finding that we review for clear error. United States v. Betancourt, 422 F.3d 240,
246 (5th Cir. 2005).
      Our review of the record and Kelley’s arguments shows that the district
court’s drug-quantity calculation is plausible in light of the entire record and
thus is not clearly erroneous. See id. As Kelley adduced no evidence to rebut the
factual findings in the presentence report, the district court acted within its
discretion by relying on it at sentencing. See United States v. Rose, 449 F.3d
627, 633 (5th Cir. 2006). The case on which Kelley relies, United States v.
Mergerson, 4 F.3d 337, 346-47 (5th Cir. 1993), is materially distinguishable.
      Because Kelley not shown that the district court’s drug quantity
determination was not plausible in light of the record as a whole, he likewise has
not shown that the district court committed clear error in calculating the drug
quantity for which he was held accountable at sentencing. See Betancourt, 422
F.3d at 246. The judgment of the district court is AFFIRMED.




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