United States v. Roe

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30857
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON ROE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 03-CR-78-L
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jason Roe appeals the sentence he received on his guilty
plea of possessing a firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1). We AFFIRM.
Roe’s sole contention is that the district court erred by
enhancing his sentence on the ground that he possessed the
handgun in connection with another felony, possession of crack
cocaine. Section 2K2.1(b)(5) of the Sentencing Guidelines
authorizes a four-level increase in a defendant’s offense level
for such conduct. Roe relies on his own hearing testimony, in

-- 1 of 2 --

No. 03-30857
-2-
which he denied having possessed the crack, and the fact that the
initial version of the police report erroneously stated that the
crack was found on his person.
“This court reviews a district court’s determination of
witness credibility [for sentencing purposes] for clear error.”
United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000).
Moreover, “the defendant bears the burden of demonstrating that
the information the district court relied on is ‘materially
untrue.’” Id. The Ocana court accepted the district court’s
credibility determinations even though there were inconsistencies
in the government witnesses’ testimony. Id.
Roe contends that the district court clearly erred in
finding that he discarded the crack while being chased by
Police Detective Coleman. However, the initial police report
written by Officers Vincent and Franklin does not invalidate the
version of the facts presented by Detective Coleman and ATF Agent
Davenport, because the former two officers were not present when
Coleman retrieved the crack. Moreover, although Roe denies
having possessed the crack, his brief does not advert to the
agent’s testimony that Roe confessed that he had possessed it to
sell. Thus the district court’s finding that Roe possessed crack
in connection with his firearm possession, based principally on
the government witnesses’ testimony, is not clearly erroneous.
AFFIRMED.

-- 2 of 2 --