United States Court of Appeals

for the Fifth Circuit

No. 20-50069

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Embry Elton Humber, Jr., also known as Money, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CR-100-1

Before Barksdale, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Embry Elton Humber, Jr., pleaded guilty to conspiracy to possess,

with intent to distribute, 280 grams or more of cocaine base; distribution of 

cocaine base; possession of, with intent to distribute, cocaine; and possession 

of, with intent to distribute, cocaine base, in violation of 21 U.S.C. §§ 841, 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 8, 2020

Lyle W. Cayce

Clerk

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846. He challenges the 120-month statutory-minimum sentence imposed, 

asserting it was incorrectly based on the drug quantity attributable to the 

entire conspiracy rather than to him individually.

As Humber recognizes, because he did not raise this issue in district 

court, review is for plain error. E.g., United States v. Morgan, 292 F.3d 460, 

465 (5th Cir. 2002). For reversible plain error, he must show a forfeited error 

that is clear or obvious and affects his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has 

the discretion to correct the error only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id.

Although our court has “found error where the district court 

increased a statutory minimum in reliance on a conspiracy-wide quantity of 

drugs”, we have reiterated that, for sentencing purposes, defendant is 

accountable “for the drug quantity with which he was directly involved, and 

all reasonably foreseeable quantities of [drugs] within the scope of the joint 

criminal activity”. United States v. Haines, 803 F.3d 713, 741 (5th Cir. 2015)

(internal quotation marks and citation omitted).

The factual basis for Humber’s plea, which he signed after reviewing 

with counsel and affirmed under oath as true, stated he conspired with his 

brother, Humber’s sole co-conspirator, to possess, with intent to distribute,

more than 280 grams of cocaine base. It details facts sufficient to establish 

his direct involvement with that quantity through his negotiations of sales to 

a cooperating source and an undercover agent and his joint possession of the 

drugs found in the hotel room he shared with his brother. Humber does not 

assert he was not directly involved with more than 280 grams of cocaine base 

or that such amount was not reasonably foreseeable to him as the only other 

member of a two-person drug-trafficking enterprise. (In his reply brief, 

Humber asserts for the first time that the drugs found in the hotel room 

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should not have been automatically attributed to him. Because this 

contention was not presented in his opening brief, we do not consider it. See

United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996); see United States 

v. Anderson, 5 F.3d 795, 801 (5th Cir. 1993)). In short, Humber fails to show 

the requisite clear or obvious error. 

AFFIRMED. 

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