* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50654

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS EUGENE DAVIS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

(MO-97-CR-73-ALL)

- - - - - - - - - -

May 7, 1999

Before SMITH, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Thomas Eugene Davis appeals his

convictions for furnishing false information in the acquisition of

firearms, pursuant to 18 U.S.C. § 922 (a)(6), and for possession of

a firearm while unlawfully using a controlled substance, pursuant

to 18 U.S.C. § 922(g)(3). He also appeals his sentence. Davis

insists that the evidence is insufficient to support his

convictions. Specifically, he contends that the government did not

prove that he was a user of illegal marijuana. Davis argues that
2

the two witnesses who testified that he used marijuana were not

credible. Our review of the sufficiency of evidence does not

include review of the weight of the evidence or the credibility of

the witnesses. See United States v. Garcia, 995 F.2d 556, 561 (5th

Cir. 1993).

Davis argues further that district court abused its discretion

by admitting (1) his nolo contendere plea to a previous charge of

possession of marijuana, and (2) testimony regarding an additional

uncharged incident of marijuana possession. Although we agree that

such evidence was inadmissible on the issue of Davis’s marijuana

use, the district court’s error was harmless in light of the

evidence of Davis’s guilt. See United States v. Williams, 957 F.2d

1238, 1244 (5th Cir. 1992). Davis also asserts, without citation

to the record or legal authority, that although a urinalysis that

tested positive for marijuana was admissible to impeach his

credibility, such admission severely damaged him. Davis has failed

to brief his argument, so it will not be considered on appeal.

Brinkmann v. Dallas Deputy Sheriff Abner, 813 F.2d 744, 748 (5th

Cir. 1987).

Davis advances several arguments directed at the district

court’s admonishment of defense witnesses regarding their Fifth

Amendment right against self-incrimination. He argues that but for

the court’s admonishments, the witnesses would have testified on

his behalf, and that had defense witness Quincy Hubert testified,

he (Davis) would not have had to testify on his own behalf. Davis

also argues, without citation to authority, that defense witness
 

1Davis also argues that because U.S.S.G. § 3C1.1 does not

give guidance to attorneys about how they should advise their

clients with regard to telling the truth, it rendered his counsel

ineffective. Inasmuch as Davis has failed to support his

contention with any legal authority, he has failed to brief it on

appeal. Brinkmann, 813 F.2d at 748.

3

Jody Thomas was incorrectly advised of his Fifth Amendment rights

and that the Supreme Court has “disapproved any practice of forcing

a waiver of the right against self-incrimination for many years.”

Davis does not indicate whether he is referring to himself or to

Hubert and Thomas. As Davis is represented by counsel, his brief

is not entitled to the same liberal construction that we afford pro

se pleadings. See Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir.

1986). And, as Davis has not sufficiently briefed the foregoing

arguments on appeal, they are deemed abandoned. Brinkmann, 813

F.2d at 748.

Regarding his sentence, Davis claims that the district court

erred by enhancing his sentence for obstruction of justice pursuant

to U.S.S.G. § 3C1.1.1 We review for clear error a district court's

factual under § 3C1.1 that a defendant has obstructed justice.

United States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1995). The

district court's finding that a defendant obstructed justice by

giving perjurious testimony is sufficient if the finding of an

obstruction or impediment of justice “encompasses all of the

factual predicates for a finding of perjury." Id. (citing United

States v. Dunnigan, 507 U.S. 87, 95 (1993)). A witness testifying

under oath commits perjury by giving “‘false testimony concerning

a material matter with the willful intent to provide false
4

testimony, rather than as a result of confusion, mistake or faulty

memory.’” Id. (quoting Dunnigan, 507 U.S. at 94). 

Inasmuch as marijuana use is an element of each of the crimes

under which Davis was convicted, the record is sufficient to uphold

an implicit finding of materiality by the district court. See

United States v. Como, 53 F.3d 87, 90 (5th Cir. 1995). Moreover,

the presentence investigation report (PSR), which the district

court adopted, indicates that the enhancement was applicable

because “Davis committed perjury by taking the stand and denying

the use of marijuana.” On express adoption of the findings in the

PSR, such findings are treated as those of the sentencing judge.

See United States v. Cabral-Castillo, 35 F.3d 182, 186-87 (5th Cir.

1995). Based on the foregoing, the sentencing court's finding of

an obstruction of justice “encompassed all the factual predicates

for a finding of perjury.” See id. Accordingly, the district

court did not err in enhancing Davis’ sentence under § 3C1.1.

For the foregoing reasons, Davis’s convictions and sentence

are, in all respects,

AFFIRMED.