FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 15, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16319

Non-Argument Calendar

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D. C. Docket No. 05-00024-CR-005-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY HODGES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(June 15, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Johnny Hodges appeals his 137-month sentence for conspiracy to distribute

cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and

846, and 18 U.S.C. § 2. Hodges argues that the district court erred by (1)
sentencing him based on (a) contested facts contained in the presentence

investigation report (“PSI”) and (b) a November 2004 drug transaction, and (2)

denying him a two-level reduction for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1. After careful review, we affirm.

The district court’s findings concerning relevant conduct for sentencing

purposes are reviewed for clear error. United States v. Query, 928 F.2d 383, 386

(11th Cir. 1991). Additionally, we review the district court’s finding of the drug

quantity attributable to a defendant for clear error. United States v. Zapata, 139

F.3d 1355, 1357 (11th Cir. 1998). We also review a district court’s factual

findings concerning a reduction for acceptance of responsibility for clear error.

United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). However, where a

defendant fails to raise an issue before the district court, we review for plain error.

See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005).

We will correct a plain error only if (1) an error occurred, (2) the error was plain,

and (3) the error affected substantial rights. United States v. Zinn, 321 F.3d 1084,

1087 (11th Cir. 2003). “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if . . . the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotations omitted).

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First, we find no merit in Hodges’s claim that the bases of the district court’s

sentence were incorrect. A member of a drug conspiracy is liable for his own acts

and the reasonably foreseeable acts of others in furtherance of the activity that the

defendant agreed to undertake. See United States v. Ismond, 993 F.2d 1498, 1499

(11th Cir. 1993); U.S.S.G. § 1B1.3(a)(1)(B). The district court must first make

individualized findings concerning the scope of criminal activity undertaken by a

particular defendant, and then determine the drug quantities reasonably foreseeable

in connection with that level of participation. See Ismond, 993 F.2d at 1499. Even

if the district court does not make individualized findings, the sentence can be

upheld if the record supports the amount of drugs attributed to a defendant. Id.

The district court may rely on undisputed statements in the PSI, even in the

absence of supporting evidence. See United States v. Hedges, 175 F.3d 1312, 1315

(11th Cir. 1999). “A sentencing error, under the Guidelines, is harmless if a court

considers the proceedings in their entirety and determines that the error did not

affect the sentence or had but very slight effect.” United States v. Campa, 529

F.3d 980, 1013 (11th Cir. 2008) (quotations omitted). “If we can say with fair

assurance that the sentence was not substantially swayed by the error, we may

affirm.” Id. (quotations omitted).

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As the record here shows, Hodges never objected to paragraphs 17, 21, and

22 in the PSI, and the district court was therefore entitled to accept the statements

contained in these paragraphs as true. See Hedges, 175 F.3d at 1315. Based on the

undisputed statements contained in these paragraphs of the PSI, together with the

facts contained in the plea agreement, a preponderance of the evidence established

that Hodges knew of or reasonably foresaw his co-conspirators’ concealment of

drugs in the area surrounding the club, and the district court did not commit clear

error by attributing these drug quantities to Hodges. Furthermore, although the

district court erred in considering the 2004 transaction as part of the conspiracy,

this error was harmless, because it had only a slight, if any, effect, on his ultimate

sentence. See Campa, 529 F.3d at 1013.

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We also reject Hodges’s argument that the district court erred in determining

that he was not entitled to an offense level reduction for acceptance of

responsibility. A defendant is entitled to a two-level reduction if he “clearly

demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).

In determining whether a defendant qualifies for the two-level reduction, a district

 While it could be argued that the district court would have sentenced Hodges to a mid- 1

or low-range sentence -- rather than the high-end sentence he received -- if the total drug amount

was reduced and the 2004 transaction was not considered as part of the conspiracy, we are not

persuaded that the district court would have done so. Indeed, the district court specifically stated

that the high-end sentence was based on Hodges’s prior criminal history and the fact that the

court did not apply the career offender enhancement. Furthermore, even without the 2004

transaction, the drug quantity involved remained well above the 1,000 kilogram amount.

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court may consider whether the defendant “truthfully admitt[ed] the conduct

comprising the offense(s) of conviction, and truthfully admitt[ed] or [did] not

falsely deny[] any additional relevant conduct for which the defendant is

accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 3E1.1, comment.

(n.1(a)). “[A] defendant who falsely denies, or frivolously contests, relevant

conduct that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” Id.

As an initial matter, we review for plain error Hodges’s objection to the

denial of an acceptance of responsibility reduction, because Hodges failed to object

to the denial of the reduction either in his PSI objections or at sentencing.

Although Hodges objected to paragraph 29 of the PSI, which explained the denial

of an acceptance of responsibility reduction, he simply requested that the paragraph

be amended to reflect that he played a minor role in the conspiracy. Nor did his

inquiry at the conclusion of the sentencing proceeding regarding whether the

district court factored an acceptance of responsibility reduction into its calculations

take the form of an objection to the failure to grant such a reduction.

On this record, it was not error, let alone plain error, for the district court to

deny Hodges an acceptance of responsibility reduction. In his objections to the

PSI and at his sentencing hearing, Hodges challenged the drug quantities

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attributable to him. In addition, at sentencing Hodges admitted only to “being in

the nightclub working there and being around people who sell drugs.” He further

denied selling drugs for a co-conspirator and denied the assertion that he was

involved in a conspiracy. Hodges at no time during sentencing or in his objections

to the PSI admitted to being involved in the conspiracy or admitted that he was

responsible for any quantity of narcotics. Under these circumstances, Hodges was

not entitled to a reduction for acceptance of responsibility and the court’s failure to

grant such a reduction was not error, let alone plain error.

Accordingly, we affirm Hodges’ sentence.

AFFIRMED.

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