IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50654
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS EUGENE DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(MO-97-CR-73-ALL)
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May 7, 1999
Before SMITH, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Thomas Eugene Davis appeals his
convictions for furnishing false information in the acquisition of
firearms, pursuant to 18 U.S.C. § 922 (a)(6), and for possession of
a firearm while unlawfully using a controlled substance, pursuant
to 18 U.S.C. § 922(g)(3). He also appeals his sentence. Davis
insists that the evidence is insufficient to support his
convictions. Specifically, he contends that the government did not
prove that he was a user of illegal marijuana. Davis argues that
*
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that this opinion should not be published and is not precedent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.
the two witnesses who testified that he used marijuana were not
credible. Our review of the sufficiency of evidence does not
include review of the weight of the evidence or the credibility of
the witnesses. See United States v. Garcia, 995 F.2d 556, 561 (5th
Cir. 1993).
Davis argues further that district court abused its discretion
by admitting (1) his nolo contendere plea to a previous charge of
possession of marijuana, and (2) testimony regarding an additional
uncharged incident of marijuana possession. Although we agree that
such evidence was inadmissible on the issue of Davis’s marijuana
use, the district court’s error was harmless in light of the
evidence of Davis’s guilt. See United States v. Williams, 957 F.2d
1238, 1244 (5th Cir. 1992). Davis also asserts, without citation
to the record or legal authority, that although a urinalysis that
tested positive for marijuana was admissible to impeach his
credibility, such admission severely damaged him. Davis has failed
to brief his argument, so it will not be considered on appeal.
Brinkmann v. Dallas Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Davis advances several arguments directed at the district
court’s admonishment of defense witnesses regarding their Fifth
Amendment right against self-incrimination. He argues that but for
the court’s admonishments, the witnesses would have testified on
his behalf, and that had defense witness Quincy Hubert testified,
he (Davis) would not have had to testify on his own behalf. Davis
also argues, without citation to authority, that defense witness
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Jody Thomas was incorrectly advised of his Fifth Amendment rights
and that the Supreme Court has “disapproved any practice of forcing
a waiver of the right against self-incrimination for many years.”
Davis does not indicate whether he is referring to himself or to
Hubert and Thomas. As Davis is represented by counsel, his brief
is not entitled to the same liberal construction that we afford pro
se pleadings. See Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir.
1986). And, as Davis has not sufficiently briefed the foregoing
arguments on appeal, they are deemed abandoned. Brinkmann, 813
F.2d at 748.
Regarding his sentence, Davis claims that the district court
erred by enhancing his sentence for obstruction of justice pursuant
to U.S.S.G. § 3C1.1.1 We review for clear error a district court's
factual under § 3C1.1 that a defendant has obstructed justice.
United States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1995). The
district court's finding that a defendant obstructed justice by
giving perjurious testimony is sufficient if the finding of an
obstruction or impediment of justice “encompasses all of the
factual predicates for a finding of perjury." Id. (citing United
States v. Dunnigan, 507 U.S. 87, 95 (1993)). A witness testifying
under oath commits perjury by giving “‘false testimony concerning
a material matter with the willful intent to provide false
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Davis also argues that because U.S.S.G. § 3C1.1 does not
give guidance to attorneys about how they should advise their
clients with regard to telling the truth, it rendered his counsel
ineffective. Inasmuch as Davis has failed to support his
contention with any legal authority, he has failed to brief it on
appeal. Brinkmann, 813 F.2d at 748.
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testimony, rather than as a result of confusion, mistake or faulty
memory.’” Id. (quoting Dunnigan, 507 U.S. at 94).
Inasmuch as marijuana use is an element of each of the crimes
under which Davis was convicted, the record is sufficient to uphold
an implicit finding of materiality by the district court. See
United States v. Como, 53 F.3d 87, 90 (5th Cir. 1995). Moreover,
the presentence investigation report (PSR), which the district
court adopted, indicates that the enhancement was applicable
because “Davis committed perjury by taking the stand and denying
the use of marijuana.” On express adoption of the findings in the
PSR, such findings are treated as those of the sentencing judge.
See United States v. Cabral-Castillo, 35 F.3d 182, 186-87 (5th Cir.
1995). Based on the foregoing, the sentencing court's finding of
an obstruction of justice “encompassed all the factual predicates
for a finding of perjury.” See id. Accordingly, the district
court did not err in enhancing Davis’ sentence under § 3C1.1.
For the foregoing reasons, Davis’s convictions and sentence
are, in all respects,
AFFIRMED.
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