     Case: 11-50974     Document: 00511896315         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 11-50974
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LARRY LEE WELLINGTON, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-145-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Larry Lee Wellington, Jr., was charged with three counts of possession
with intent to distribute cocaine base (crack cocaine) in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). He appeals the within-guidelines sentence imposed
following his guilty plea conviction for Count Three of the indictment.
        Wellington contends that the district court clearly erred in determining
the quantity of drugs attributable to him for purposes of U.S.S.G. § 2D1.1.
Specifically, he argues that the quantities of crack cocaine alleged in Counts One

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50974

and Two of the indictment should not have been included because he neither
pleaded guilty to nor was convicted of those counts. He also argues that these
quantities should not have been included as relevant conduct because the
transactions alleged in those counts did not occur and, in the alternative, were
not part of his plan or course of conduct.
      The district court did not clearly err in concluding that Wellington
committed the acts alleged in Counts One and Two of the indictment. See
United States v. Davis, 76 F.3d 82, 84-85 (5th Cir. 1996); United States v. Vital,
68 F.3d 114, 120 (5th Cir. 1995). Although Wellington neither pleaded guilty to
nor was convicted of these transactions, the district court was not prohibited
from including them as relevant conduct because they did not increase his
sentence beyond the 20-year statutory maximum term of imprisonment allowed
for his offense of conviction. See § 841(b)(1)(C); United States v. Hernandez, 633
F.3d 370, 374 (5th Cir.), cert. denied, 131 S. Ct. 3006 (2011). Further, given the
similarity, regularity, and close temporal proximity of the three transactions, the
district court did not clearly err in concluding that they were part of the same
course of conduct or common scheme or plan as the offense of conviction. See
United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992). To the extent
Wellington argues that the similarity, regularity, and close temporal proximity
of these transactions should have been discounted because they were the result
of sentencing entrapment or sentencing factor manipulation, he has failed to
show that the confidential informant or the Austin Police Department persuaded
him to commit a greater criminal offense than he was predisposed to commit or
that their conduct was overbearing or outrageous. See United States v. Jones,
664 F.3d 966, 984 (5th Cir. 2011), petition for cert. filed (May 2, 2012) (No. 11-
1326); United States v. Tremelling, 43 F.3d 148, 151-52 (5th Cir. 1995).
Therefore, the district court’s relevant conduct determination was plausible in
light of the record read as a whole, and Wellington has not shown that the
district court clearly erred in determining the quantity of drugs attributable to

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him for purposes of § 2D1.1. See United States v. Betancourt, 422 F.3d 240, 246
(5th Cir. 2005).
      Wellington also contends that the district court clearly erred when it
denied him a two-level reduction for his minor role in the offense pursuant to
§ 3B1.2(b).   He argues that he was substantially less culpable than the
confidential informant, who arranged and was present at each transaction.
      Because Wellington was the only defendant and neither the undercover
officer nor the confidential informant was a participant for purposes of § 3B1.2,
see § 3B1.1, comment. (n.1); § 3B1.2, comment. (n.1), Wellington was not eligible
for the minor role adjustment, see § 3B1.2, comment. (n.2). Further, even if the
district court had accepted Wellington’s self-serving declarations that he
committed the offense at the confidential informant’s request, his actions were
not peripheral to the advancement of the illicit activity. See United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005). Therefore, Wellington has not
shown that the district court clearly erred when it denied him a two-level
reduction pursuant to § 3B1.2(b). See id. at 203-04.
      Finally, Wellington contends that the district court erred when it denied
him a two-level reduction for acceptance of responsibility pursuant to § 3E1.1(a).
Wellington denied the transactions alleged in Counts One and Two of the
indictment and objected to the presentence report’s inclusion of the drug
quantities involved in those counts as relevant conduct. The district court
rejected Wellington’s objection and concluded that, based on the information in
the presentence report, the undercover officer’s testimony at sentencing, and the
Government’s documentary evidence, Wellington committed the acts alleged in
those counts. Therefore, the district court’s denial of a two-level reduction for
acceptance of responsibility pursuant to § 3E1.1(a) is not without foundation.
See § 3E1.1, comment. (n.1(A)); United States v. Washington, 340 F.3d 222, 227
(5th Cir. 2003).
      Accordingly, the district court’s judgment is AFFIRMED.

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