United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-31149
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN BARTLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CR-50017-ALL
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Before JOLLY, HIGGINBOTHAM and PICKERING, Circuit Judges.
PER CURIAM:*
Warren Bartley (“Bartley”) appeals the sentence imposed
following his guilty-plea conviction for possession with intent
to distribute marijuana. Bartley argues that the district court
clearly erred by finding that he was responsible for two
kilograms of cocaine in making its drug quantity determination
because his responsibility for the cocaine was not supported by a
preponderance of the evidence. For the first time in his reply
brief, Bartley asserts that the district court violated his
*
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this opinion should not be published and is not precedent except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.
No. 03-31149
-2-
constitutional rights as set forth in Blakely v. Washington, 124
S. Ct. 2531 (2004), because it based his sentence upon alleged
cocaine deliveries to which he did not plead guilty and which
were not proven to a jury beyond a reasonable doubt. Bartley
additionally contends that the district court clearly erred by
denying him a reduction for acceptance of responsibility. In one
section of his brief, Bartley also appears to state that the
delivery of cocaine was not part of the same course of conduct as
his offense conduct, but Bartley does not make any further
argument on this issue. To the extent that Bartley is attempting
to raise this argument, it is not properly briefed and deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Bartley was arrested in possession of approximately 22
kilograms of marijuana but no cocaine. However, when Bartley
pled guilty the police officer testified that Bartley admitted
after his arrest that he had been delivering both cocaine and
marijuana for approximately one year. Following the conclusion
of the officer’s testimony, Barley indicated that he agreed with
the testimony.
At sentencing, a cooperating defendant testified that
Bartley had delivered cocaine to him, and a police officer
testified that Bartley admitted to delivering two kilograms of
cocaine. Although Bartley testified that he had not delivered
cocaine at sentencing, this did not make his earlier admissions
No. 03-31149
-3-
unreliable to the extent that it could not be considered at
sentencing. See United States v. Davis, 76 F.3d 82, 83-85 (5th
Cir. 1996). The cooperating defendant’s testimony was
corroborated by Bartley’s admission and was sufficiently reliable
to be considered. See United States v. Gaytan, 74 F.3d 545, 558
(5th Cir. 1996). The district court was presented with
conflicting statements from a witness and conflicting evidence
and made a credibility determination that we will not disturb.
See Davis, 76 F.3d at 85; United States v. Perez, 217 F.3d 323,
331-32 (5th Cir. 2000). Accordingly, the district court’s drug
quantity determination was not clearly erroneous.
Bartley’s Blakely argument is foreclosed by this court’s
recent decision in United States v. Pineiro, __ F.3d __, No. 03-
30437, 2004 WL 1543170, *1 (5th Cir. July 12, 2004).
Furthermore, as Bartley denied relevant conduct that the district
court found to be true at sentencing, the district court’s denial
of acceptance of responsibility was not without foundation. See
U.S.S.G. § 3E1.1, comment. (n.1(a)); United States v. Solis, 299
F.3d 420, 458 (5th Cir. 2002).
AFFIRMED.