Case: 20-50069      Document: 00515595613         Page: 1    Date Filed: 10/08/2020




              United States Court of Appeals
                   for the Fifth Circuit                         United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  October 8, 2020
                                  No. 20-50069                     Lyle W. Cayce
                                Summary Calendar                        Clerk


   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   opinion should not be published and is not precedent except under the limited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.
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                                    No. 20-50069


   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, 

,
   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, 

, 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.

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, 

, 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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                                    No. 20-50069


   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, 

, 122 n.7 (5th Cir. 1996); see United States
   v. Anderson, 

, 801 (5th Cir. 1993)). In short, Humber fails to show
   the requisite clear or obvious error.
          AFFIRMED.




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