United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-10991
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JARVIS ANTONIO DAVIS,
also known as Shorty,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-11-2
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jarvis Antonio Davis challenges his
sentence under 21 U.S.C. § 841(a)(1) & (b)(1)(C) following his
conviction for delivery of a controlled substance. First, he
asserts that the district court clearly erred in calculating the
quantity of drugs attributable to him. The district court heard
testimony from witnesses Eric McKinney, Cassandra Moore, and Scott
Tobey that supported its finding that between 500-1500 grams of
cocaine were sold as part of the jointly undertaken criminal
*
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this opinion should not be published and is not precedent except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.
activity that included Davis. As the court’s finding is plausible
in light of the record as a whole, it is not clearly erroneous.
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
Next, Davis contends that the two-level enhancement he
received for possessing a firearm was unreasonable. He complains
that the shotgun he allegedly possessed was never shown to have
been used to facilitate drug trafficking activity. Although Moore
testified that she saw Davis carry a shotgun into a room and that
Davis told her that he had just traded drugs for it, Davis asserts
that her testimony is not credible.
An enhancement under U.S.S.G. § 2D1.1(b)(1) is mandated when
the defendant possessed a firearm “‘unless it is clearly improbable
that the weapon was connected with the offense.’” United States v.
Randle, 304 F.3d 373, 378 (5th Cir. 2002)(quoting § 2D1.1, cmt. 3
(2000)). We will not disturb the district court’s credibility
determinations during sentencing. See United States v. Sotelo, 97
F.3d 782, 799 (5th Cir. 1996). Accordingly, the court’s finding
that Davis possessed a firearm in connection with the sale of crack
cocaine is plausible in light of the record, and the application of
the enhancement is not clearly erroneous. See Caldwell, 448 F.3d
at 290.
Finally, Davis contests to the district court’s finding that
he failed to demonstrate his acceptance of responsibility clearly.
He argues that the district court unfairly penalized him for
objecting to the drug quantity listed in the Presentence
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Investigation Report. Davis frivolously asserted during the
sentencing hearing, however, that only eight grams of crack cocaine
were involved in the jointly undertaken criminal activity; he also
sponsored testimony by his mother that he had never visited the
town where the activity took place. As there was a foundation for
the district court’s determination that Davis failed to demonstrate
his acceptance of responsibility, its finding to that effect is not
clearly erroneous. See United States v. Medina-Anicacio, 325 F.3d
638, 648 (5th Cir. 2003); United States v. Washington, 340 F.3d
222, 227-28 (5th Cir. 2003).
The sentence imposed by the district court is
AFFIRMED.
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