United States v. Domminic Kelley , 431 F. App'x 363 ( 2011 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2