### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-51042 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CAMERAN ARNOLD FLANAGAN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:11-CR-29-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Cameran Arnold Flanagan pleaded guilty to a i ding and abetting possession with intent to distribute cocaine and p o s s e s s i o n of a firearm by a

co nvicted felon. See 18 U.S.C. §§ 2, 922(g)(1), 924(a)(2); 21 U.S.C. § 841(a)(1), (b)(1)(C). Flanagan was sentenced to 120 months of imprisonment and three years of supervised r e l e a se on each count to run concurrently. Flanagan contends that the district court clearly erred in imposi n g an enhancement for U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 8, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-51042 Document: 00511950090 Page: 1 Date Filed: 08/08/2012No. 11-51042

obstruction of justice under U.S.S.G. § 3C1.1 and in determining th e dr ug quantity under § 2D1.1. Section 3 C 1

. 1 of the Sentencing Guidelines provides for a two-level enhancement if the defendant willfully a t t empted to obstruct or impede the administration of justice by, inter alia, attempting to comm i t perjury in a codefendant’s case. § 3C1.1 & cmt. n.1 & n.4(B). Perjury for purposes of § 3C1.1 is defined a s “ giv [ing] false testimony concerning a material matter with the willful intent to provide false tes ti m ony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan , 507 U.S. 87, 94 (1993). “[A] finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury” is sufficient. Id. at 95. Flanagan challenges two aspects of the enhancemen t f o r obstruction of justice: whether the district court made the predicate factual findings of attempted perjury and w h e ther the evidence supported the enhancement. Flanagan’s challenge to the adequacy of the district court’s findings is reviewed for plain error because this challenge is raised for the first time on appeal. Cf. United States v. Johnson , 352 F.3d 146, 150 n.2 (5th Cir. 2003). His challenge to the application of the enhancement based on his conduct was presented to the district court and is, therefore, r e vi e w e d f o r clear error. See United States v. Powers , 168 F.3d 741, 752 (5th Cir. 199 9). The district co u rt a d opted the presentence report (PSR), making the factual findings in the PSR the findings of the district court. See United States

v. Cabral-Castillo , 35 F.3d 182, 186 (5 th C i r . 1 9 94). The PSR concluded that Flanagan obstructed justice by conspiring to lie about his codefendant’s conduct. Implicit in this finding, was the finding that Flanagan planned to exculpate his codefendant by falsely testifying that she was unaware of Flanagan’s unlawful conduct. See id. at 187. Although there was no explicit finding that Flanagan’s intended testimony was material, Flanagan’s testimony that his codefendant had no knowledge of his unlawful conduct was material as it tended to exculpate
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her. See id. Accordingly, the district court’s findings respecting Flanagan’s

att e m p t e d p er

j ury w ere sufficient, and Flanagan has failed to demonstrate error , much less plain error, in this respect. Flanagan stated that he and his codefendant n e eded to coordinate and that he would give the testimony that he said he would. His codefendant stated that Flanagan should testify that she was unaware of his u nlawful conduct. These statements could plausibly be read as an attempt by Flanagan to falsely exculpate his codefendant. See United States v. Anderson , 560 F.3d 275, 283-84 (5th Cir. 2009). Therefore, the district court’s finding that Flanagan obstructed justice by attempting to commit perjury in his codefendant’s case was plausible in light of the record as a whole and not clearly erroneous. See Powers , 168 F.3d at 752. In determining a defendant’s base offense level under § 2D1.1, a district court may consider the defendant’s relevant conduct. §§ 1B1.3(a), 2D1.1 cmt. 12. The district court attributed an additional 1,347 grams of cocaine based on the cocaine sales documented in pages two, three, five, and six of a drug ledger. The district court committed an arithmetic error at sentencing in calculating this quantity of cocaine. However, as explained below, the arithmetic error was harmless. The district court’s finding that the ledger documented cocaine sales was

s u p p o rted by the testimony of a case agent. The agent’s testimony w a s corroborated by Flanagan’s admission that he possessed the cocaine found in the apartment and by the evidence of drug distribution paraphernalia, digital scales with cocaine residue, found in the same room as the ledger. There f o r e , the agent’s testimony bore sufficient indicia of reli ab i l i ty to support the district court’s determination of the drug quantity. See United States v. Nava , 624 F.3d 226, 231-32 (5th Cir. 2010), cert. deni e d , 1 3 1 S

. Ct. 2945 (2011). Although the l e d g e r did not indicate whether the recorded transactions fell within the t i m e period of the charged offense, “dru g transactions occurring before the precise
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time frame of the conspiracy for which a d e f endant is convicted may be considered for sentencing pu r p o s e s if those transactions otherwise satisfy the criteria for relevant conduct prescribed by the guidelines.” Unite d States v. McCaskey , 9 F.3d 368, 375 (5th Cir. 1993). Flanagan specifically challenges the dis tri c t court’s use of pages three, five, and six of the ledger but neglects to specifically challenge page two of the ledger. For the reasons set forth p r e vi ously, Flanagan has failed to show that the district court clearly erred by attributing cocaine based on the cocaine sales documented in page two of the ledger. The quantity of cocaine on page two, 392 grams, when added to the amount in the PSR, 371.73 grams, totals 763.73 grams. This total quantity of cocaine, 763.73 grams, yields a base offense level of 26 for more than 500 grams but les s th a n two kilograms of cocaine. See § 2D1.1(c) ( 7)

. Th e district court calculated the same base offense level. Therefore, any error by the district court in a ttributing additional cocaine to Flanagan based on pages th r e e , f iv e, and six of the ledger was harmless. See United States v. Solis , 299 F.3d 420, 462 (5th Cir. 200 2). The judgment of the district court is AFFIRMED.

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