United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-60449
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALE MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:05-CR-71-1
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Dale Martinez appeals the sentence imposed following his
guilty plea conviction of conspiracy to distribute a mixture and
substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a), (b)(1)(C), and 846. Martinez contends that the
district court erred in its drug quantity determination, arguing
that there was error under United States v. Booker, 543 U.S. 220
(2005), that information set forth in the presentence report
(PSR) was unreliable and was not properly considered in the drug
quantity determination, and that the district court erred by
*
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this opinion should not be published and is not precedent except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. 06-60449
-2-
failing to issue a ruling that the relevant conduct was part of
the same course of conduct or common scheme or plan as the
offense of conviction.
Martinez also seeks leave to file a pro se supplemental
brief. By accepting the assistance of counsel, the criminal
appellant waives his right to present pro se briefs on direct
appeal. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996).
Martinez’s motion for leave to file a pro se supplemental brief
is denied.
Post-Booker, “[t]he sentencing judge is entitled to find by
a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guidelines sentence.”
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The district court thus did not
commit error under Booker by considering relevant conduct neither
admitted by Martinez nor determined by a jury. See United States
v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006).
Analysis of the PSR and the PSR Addendum indicates that
there was no error in the district court’s determination of drug
quantity, as that determination was based upon relevant conduct
that was closely related to and in furtherance of the charged
drug conspiracy. See U.S.S.G. § 1B1.3 and comment. (n.9); United
States v. Solis, 299 F.3d 420, 462 (2002); United States v.
Bryant, 991 F.2d 171, 177 (5th Cir. 1993). Moreover, at the
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sentencing hearing, Martinez was offered the opportunity to
present evidence to rebut the facts set forth in the PSR. By
failing to submit evidence, Martinez failed to meet his burden of
showing that the information in the PSR was materially untrue,
and, in the absence of rebuttal evidence, the district court was
entitled to rely on the facts in the PSR. United States v.
Betancourt, 422 F.3d 240, 248 (5th Cir. 2005); United States v.
De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005), cert. denied,
126 S. Ct. 1022 (2006).
Finally, the district court adopted the facts and
conclusions set forth in the PSR without change. The PSR and the
Addendum provide explicit rationale for the drug quantity
determination. Therefore, by overruling Martinez’s objection and
adopting the PSR, the district court determined that the
transactions set forth in the PSR were relevant conduct that
supported the drug quantity calculation. See United States v.
Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994).
The district court’s drug quantity finding is plausible in
light of the record as a whole and therefore is not clear error.
See United States v. Villanueva, 408 F.3d 193, 202-03 & n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005). The district court’s
judgment is affirmed.
MOTION TO FILE PRO SE SUPPLEMENTAL BRIEF DENIED; JUDGMENT
AFFIRMED.