* 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this opinion should not be published and is not precedent except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

FILED

March 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60449

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DALE MARTINEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:05-CR-71-1

--------------------

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
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
No. 06-60449

-3-

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.