IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2009
No. 08-11030
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE EZEOKEKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-16-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Joe Ezeokeke appeals from his 138-month sentence of imprisonment for
possession of cocaine with intent to distribute. He contends that the district
court erred by adjusting his offense level for obstruction of justice, pursuant to
U.S. Sentencing Guidelines Manual § 3C1.1, based on its determination that he
committed perjury at trial and that his sentence was substantively
unreasonable.
*
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should not be published and is not precedent except under the limited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. 08-11030
Ezeokeke contends that the district court based the adjustment on an
implicit finding in the district court’s verdict that his testimony was not credible
and on his denial of guilt. The district court adopted the findings in Ezeokeke’s
presentence report (PSR), which set out facts and a legal discussion as to why
an obstruction adjustment was warranted. As adopted, the PSR’s factual
findings became the findings of the district court. See United States v. Cabral-
Castillo, 35 F.3d 182, 186 (5th Cir. 1994); United States v. Laury, 985 F.2d 1293,
1309 n.20 (5th Cir. 1993).
The record indicates that Ezeokeke testified falsely about his reasons for
coming to the United States, his reason for traveling to Houston, the movement
of money into and out of his bank account, and telephone numbers relevant to
the case. The facts support the adjustment for obstruction of justice. The
elements of possession with intent to distribute a controlled substance under 21
U.S.C. § 841 are “(1) knowledge, (2) possession, and (3) intent to distribute the
controlled substance.” United States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007).
Ezeokeke’s story, if believed, would have negated the knowing possession and
intent to distribute elements of the crime. His testimony was material for
purposes of the obstruction guideline. See U.S. Sentencing Guidelines Manual
§ 3C1.1 cmt. n.6. The district court did not err by adjusting Ezeokeke’s offense
level for obstruction. See United States v. Storm, 36 F.3d 1289, 1295–97 (5th
Cir. 1994).
Ezeokeke raised the same arguments in the district court for a sentence
at the low end of the guideline sentencing range that he now raises to challenge
the reasonableness of the sentence. The district court heard Ezeokeke’s
arguments and was not persuaded by those arguments to sentence him at the
low end of the guideline sentencing range. Moreover, Ezeokeke’s arguments do
not suggest mitigating factors distinguishing him from any other similarly
situated defendants. Ezeokeke has failed to rebut the presumption of
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No. 08-11030
correctness given to his within-range sentence. See United States v. Gomez-
Herrera, 523 F.3d 554, 565–66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
AFFIRMED.
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