Full Opinion (html_with_citations)

    Case: 18-10874    Document: 00515213088     Page: 1   Date Filed: 11/25/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                 No. 18-10874                  November 25, 2019
                                                                 Lyle W. Cayce
                                                                      Clerk


UNITED STATES OF AMERICA,

            Plaintiff–Appellee

versus

RONNIE KEARBY,

            Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before OWEN, Chief Judge, JONES and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Ronnie Kearby has had more than one brush with the law. His latest
exploits led to a guilty plea of conspiracy to possess with intent to distribute
methamphetamine (“meth”). The district court sentenced him to, among other
things, 235 months. He appeals, challenging the procedural and substantive
reasonableness of his sentence. We affirm.
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                                       No. 18-10874
                                              I.
      During May and June 2016, Kearby daily received between one and
three ounces (28.35 and 85.05 grams, respectively) of meth from Nicole Her-
rera, whose supplier was Pablo Morales, who had imported the drugs from
Mexico. Kearby consumed some of the meth but mainly distributed it around
Dallas-Fort Worth. He was arrested in late June 2016. Fifteen months later,
he pleaded guilty (without a plea agreement) of conspiracy to possess with
intent to distribute meth in violation of
21 U.S.C. §§ 841
(a)(1) and (b)(1)(B)
and 846.

      Section 2D1.1 of the U.S. Sentencing Guidelines (“U.S.S.G.”) established
Kearby’s base offense level by reference to the quantity of drugs involved in his
conduct.      To calculate that quantity, the presentence investigation report
(“PSR”) estimated (conservatively) that Kearby had purchased one ounce of
meth per day. That estimate came from Herrera’s statement to investigators
that she’d given Kearby one to three ounces per day. The PSR multiplied that
quantity by sixty days—the period that Herrera said Kearby had participated
in the conspiracy. All told, the PSR’s “conservative estimate” was 1,701 grams,
yielding a base offense level of 32.

      Next, the PSR applied a two-level importation enhancement under
U.S.S.G. § 2D1.1(b)(5) because the drugs had come from Mexico. It also rec-
ommended a three-level reduction for acceptance of responsibility. The net
offense level was 31, and because of Kearby’s lengthy past, the criminal history
category was VI. The PSR thus recommended a guideline range of 188 to 235
months.

      Kearby objected to the PSR on three main grounds. 1 First, he contested



      1   Kearby had a fourth objection that he doesn’t press on appeal, relating to the PSR’s
                                               2
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                                       No. 18-10874
Herrera’s reliability in providing information for the drug-quantity estimate.
He pointed out that Herrera had faked cooperation with the Drug Enforcement
Administration and duped an agent into returning her cellphone, at which
point she promptly deleted her text messages from after June 2016, which
destroyed critical evidence. Kearby also said that he had participated in the
conspiracy for less than the sixty days Herrera alleged. Next, Kearby objected
to the importation enhancement. There was “no evidence,” he claimed, that he
had “ever directly or indirectly imported any [meth] from Mexico” nor that he
knew the drugs were imported. Finally, he complained that he should have
received a minor-participant reduction under U.S.S.G. § 3B1.2, since he had
participated for (in his view, less than) two months in a conspiracy that
spanned forty.

       The probation office refused to change its recommendations. The PSR’s
addendum noted that Herrera had been a credible and reliable source; that it
was irrelevant whether Kearby knew the drugs had been imported; and that
Kearby was an average, not minor, participant in the conspiracy.

       Fast forward to sentencing. Kearby called Special Agent Brian Finney,
who had interviewed Herrera, hoping that Finney’s testimony would help show
that the PSR had overestimated the quantity of drugs. Things didn’t go as
Kearby wished. Finney confirmed that Herrera’s phone didn’t have any text
messages between her and Kearby from before May 22, 2016, and that Herrera
had deleted relevant information from it. But Finney also testified that Her-
rera had stated she sold one to three ounces a day to Kearby; not all of Her-
rera’s sales had a corresponding text message; Herrera’s scoops had proven
reliable and accurate in Kearby’s and others’ cases; with Herrera’s help,



calculation of the criminal-history score.
                                             3
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                                 No. 18-10874
investigators had tracked down many other defendants; and the government
had corroborated most of Herrera’s statements. The upshot: Finney “felt confi-
dent, based on what we were able to corroborate through her Facebook and
text messages, as well as our own independent investigation, that [Herrera]
was being honest with us.”

      The court overruled Kearby’s objections to the drug-quantity calculation,
the importation enhancement, and the refusal to apply the minor-participant
reduction. It found that the PSR had reasonably estimated the quantity based
on “reliable information” and that Herrera was a credible informant. Citing
our precedent, the court concluded that the importation enhancement applied
regardless of Kearby’s knowledge. And it adopted the PSR’s finding that
Kearby did not deserve a minor-participant reduction. Accordingly, it calcu-
lated a guideline range of 188 to 235 months and concluded that a 235-month
sentence was appropriate in view of Kearby’s criminal history.

      Kearby appeals the sentence. He insists, among other things, that the
district court erred in calculating the quantity of drugs, applying the importa-
tion enhancement, denying a minor-participant reduction, assuming the guide-
lines were mandatory, imposing an alternative sentence, and handing down a
substantively unreasonable sentence.

                                       II.
      We review sentences for reasonableness. Gall v. United States,
552 U.S. 38, 46
 (2007). “Using a bifurcated review process, we first examine whether
the district court committed any significant procedural error. If the district
court’s decision is procedurally sound, we then consider the substantive rea-
sonableness of the sentence.” United States v. Nguyen,
854 F.3d 276, 280
 (5th
Cir. 2017) (citation omitted).


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                                     No. 18-10874
                                            A.
       Kearby’s main assertion is that the district court procedurally erred in
calculating the quantity of drugs. We begin with the contentions that he
preserved in the district court.

                                            1.
       Kearby challenged the reliability of the calculation of quantity. That
calculation “is a factual determination,” so we will not set it aside unless it was
implausible in light of the whole record. United States v. Alford,
142 F.3d 825, 831
 (5th Cir. 1998). “When making factual findings for sentencing purposes,
[the] district court[] may consider any information which bears sufficient
indicia of reliability to support its probable accuracy.” United States v. Harris,
702 F.3d 226, 230
 (5th Cir. 2012) (per curiam) (quotation marks omitted).
Thus, it may “adopt facts contained in a PSR without inquiry, if those facts had
an adequate evidentiary basis and the defendant does not present rebuttal
evidence.” United States v. Puig-Infante,
19 F.3d 929, 943
 (5th Cir. 1994). “[A]
district court may consider estimates of the quantity of drugs for sentencing
purposes.” 2

       First, Kearby asserts that because the government didn’t corroborate
Herrera’s statements about the quantity sold to Kearby, the court clearly erred
in relying on Herrera’s information. We reject that contention. If uncorrobor-
ated hearsay is sufficiently reliable, a district court may rely on it in making
sentencing findings. United States v. Malone,
828 F.3d 331, 337
 (5th Cir.
2016). And the court can consider the statements of coconspirators such as
Herrera—even statements that are “somewhat imprecise”—in calculating


       2Alford,
142 F.3d at 832
 (quotation marks omitted); accord United States v. Medina,
161 F.3d 867, 876
 (5th Cir. 1998) (“The amount [of drugs], moreover, need not be limited to
the actual quantities seized; the district judge can make an estimate.”).
                                            5
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                                       No. 18-10874
drug quantity. 3 The information that Herrera supplied about Kearby was
reliable. Finney noted that Herrera had helped the government track down at
least fifteen other defendants and that a “large majority” of the information
she provided had been corroborated. Even if investigators did not specifically
corroborate her report of the quantity sold to Kearby, Kearby has failed to show
that it was implausible that her statements were accurate.                        See Alford,
142 F.3d at 831
.

       Next, Kearby maintains that a better estimate is that he received meth
for 39 days, not 60. He points out that there were no text messages between
him and Herrera that predated May 22, 2016, and that he was arrested on
June 29, 2016. But because the 60-day finding was not implausible, we reject
Kearby’s contention. See
id.
 Finney testified that Herrera didn’t associate
every transaction with a text message. He also stated that some of Herrera’s
texts from May 22 indicated that Herrera and Kearby had had “prior contact
about [meth].” Thus, the 60-day finding wasn’t clearly erroneous.

       Finally, Kearby attacks Herrera’s general credibility as a source. He
notes that she destroyed evidence and claims she had a motive to lie to “receive
reductions in her own sentence.” Kearby forgets, however, that we defer to a
sentencing court’s credibility determinations. 4 The district court carefully
questioned Finney about Herrera before concluding that she was credible.



       3 Alford,
142 F.3d at 832
; accord United States v. Cantu-Ramirez,
669 F.3d 619, 629
(5th Cir. 2012) (affirming reliance on coconspirator’s testimony in calculating the quantity of
drugs involved in an offense); see also United States v. Rico,
864 F.3d 381, 386
 (5th Cir. 2017)
(“Statements by coconspirators are sufficiently reliable to form the basis of a finding.”).
       4 See United States v. Perez,
217 F.3d 323
, 331–32 (5th Cir. 2000) (“At the sentencing
hearing, the district court adopted the recommendations in the PS[R] in their entirety and,
in large measure, made credibility assessments . . . . We defer to the trial court’s superior
position in making such credibility calls.”); United States v. Sotelo,
97 F.3d 782, 799
 (5th
Cir. 1996) (“Credibility determinations in sentencing hearings are peculiarly within the
province of the trier-of-fact.” (quotation marks omitted)).
                                               6
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                                      No. 18-10874
That is more than enough to trigger our deference.

                                             2.
       For the first time on appeal, Kearby raises several contentions related to
the drug-quantity calculation. Because they were not preserved, we exercise
plain-error review. United States v. Jones,
489 F.3d 679, 681
 (5th Cir. 2007).
The first requirement of plain error is that the “appellant must show (1) an
error or defect . . . .” United States v. Daniel,
933 F.3d 370, 382
 (5th Cir. 2019)
(and quotation marks omitted). There is no error, plain or otherwise.

       First, Kearby contends that the district court erred as a matter of law in
using a “multiplier method” to calculate the drug quantity. He suggests that
“[e]stimation of drug quantity using the ‘multiplier’ method is only appropriate
where a known quantity of drugs is involved in a particular occurrence . . . and
is extrapolated to other such occurrences.”

       We disagree that the court applied a “multiplier method,” and Kearby’s
formulation proves it. There was a “known quantity of drugs” (one ounce) and
a “known quantity of” days (sixty). Hence, unlike the courts in United States
v. Betancourt,
422 F.3d 240
 (5th Cir. 2005), and United States v. Cabrera,
288 F.3d 163
 (5th Cir. 2002) (per curiam), the court did not extrapolate from a
known event to predict what had happened in other unknown events. 5 Instead,
all events were “known.” 6 That the court had to dust off its calculator and run




       5See Betancourt,
422 F.3d at 248
 (“Knowing only the amount of cocaine sold to
Esparza, the district court properly used this figure as a multiplier for each dealer to whom
Betancourt claimed he sold cocaine.”); Cabrera, 288 F.3d at 170–72 (affirming extrapolation
of known number of immigrants smuggled on two occasions to other occasions on which the
number of immigrants wasn’t known).
       6 Kearby disagrees that the quantity of drugs and number of days were “known.” But
for reasons already described, those estimates were reliable.
                                             7
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                                      No. 18-10874
the numbers does not mean it applied some sort of “multiplier method.” 7

      Relatedly, Kearby contends that the district court erroneously failed to
apply a “discount” “to arrive at a more reliable estimated [drug] quantity.” We
reject both the premise and the conclusion. Kearby does not point to any case
of ours that requires such a “discount,” and the estimate was both reliable and
conservative.

      Finally, Kearby contends that the meth he consumed shouldn’t be
counted “since [21 U.S.C. §] 841(a)(1) makes distribution unlawful, not pur-
chases.” But he properly concedes that our precedent forecloses that claim.
E.g., United States v. Clark,
389 F.3d 141, 142
 (5th Cir. 2004) (per curiam).
Accordingly, Kearby has failed to show plain or clear error in the calculation of
quantity.

                                            B.
      Kearby challenges the district court’s application of an importation
enhancement under U.S.S.G. § 2D1.1(b)(5). That section allows a two-level
increase
      [i]f (A) the offense involved the importation of amphetamine or
      [meth] or the manufacture of amphetamine or [meth] from listed
      chemicals that the defendant knew were imported unlawfully, and
      (B) the defendant is not subject to an adjustment under §3B1.2
      (Mitigating Role) . . . .

                                            1.
      First, Kearby urges that the importation enhancement can’t apply as a
matter of law because (1) he wasn’t aware that the drugs had been imported; 8
(2) the importation didn’t “take place during the ‘window’ of [his] involvement”


      7   We express no view on when a “multiplier method” might be appropriate.
      8 Kearby admits that that contention is foreclosed by this court’s precedent. See
United States v. Serfass,
684 F.3d 548, 552
 (5th Cir. 2012).
                                             8
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                                     No. 18-10874
in the conspiracy; (3) it violates due process to apply the enhancement even
where a defendant doesn’t know the drugs had been imported; and (4) impor-
tation wasn’t relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B).

      Our precedent forecloses all four contentions. As to the first two, the
“distribution (or possession with intent to distribute) of imported [meth], even
without more, may subject a defendant to the § 2D1.1(b)(5) enhancement.”
United States v. Foulks,
747 F.3d 914, 915
 (5th Cir. 2014) (per curiam). That
is, the enhancement applies even if the distributor doesn’t know of the drugs’
foreign origins. 9 So, it’s irrelevant whether Kearby knew the drugs had come
from Mexico; and, by the same logic, the importation needn’t have happened
during the “‘window’ of Kearby’s involvement” in the conspiracy.

       Kearby’s due process point is equally barred. In Serfass,
684 F.3d at 553
,
we held that courts don’t violate due process in imposing the § 2D1.1(b)(5)
enhancement “without requiring knowledge of importation.” Finally, we reject
Kearby’s contention that the enhancement can’t apply because the importation
wasn’t relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). We dismissed the
same in United States v. Croxton,
693 F. App’x 327
, 327–28 (5th Cir. 2017) (per
curiam), on the ground that mere distribution of imported drugs, “without
more, may subject a defendant to the § 2D1.1(b)(5) enhancement.”

                                            2.
      Second, Kearby asserts that his case presents a supposedly unresolved
question: Whether mere possession (with intent to distribute) of imported
meth “involve[s] the importation of . . . [meth]” under § 2D1.1(b)(5) (emphasis
added). But we have answered that question—and not in a way that Kearby


      9 Id.; accord Serfass,
684 F.3d at 552
 (“Thus, the § 2D1.1(b)(5) sentencing enhance-
ment applies if the offense involved the importation of amphetamine or [meth] regardless of
whether the defendant had knowledge of that importation.” (quotation marks omitted)).
                                            9
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                                    No. 18-10874
would have preferred. In United States v. Rodriguez,
666 F.3d 944, 946
 (5th
Cir. 2012), the defendant pleaded guilty of possession with intent to distribute
meth, much like Kearby’s guilty plea of conspiracy to do the same. The defen-
dant objected to the importation enhancement, complaining that her “offense
did not involve the importation of [meth], because the importation was com-
plete before she came into possession.”
Id.
 We disagreed, noting that “[t]he
scope of actions that ‘involve’ the importation of drugs is larger than the scope
of those that constitute the actual importation.” Id.

                                           3.
      Finally, Kearby attacks the district court’s factual findings on the impor-
tation enhancement, urging that there was insufficient evidence that the drugs
had been imported.        But Kearby told the district court that he was not
challenging the sufficiency of the evidence. In his written objections to the
PSR, he conceded that “the evidence shows that Pablo Morales imported the
[meth] from Mexico, providing it to Herrera, who then sold a small percentage
of that [meth] to the Defendant.” And at sentencing, after the court asked
Kearby whether he contended that the drugs “w[ere] not imported,” Kearby
clarified that he was not doing so. The issue is thus waived. 10

                                           C.
      Kearby contends that the district court procedurally erred in refusing to
apply a minor-participant reduction under U.S.S.G. § 3B1.2(b), which allows,



      10  Kearby also complains that there was insufficient evidence that he was involved
with the “manufacture of . . . [meth] from listed chemicals that the defendant knew were
imported unlawfully.” U.S.S.G. § 2D1.1(b)(5). But that (understandably) misreads the PSR.
Though the PSR initially stated that Kearby’s “offense involved the importation of [meth]
from listed chemicals that the defendant knew were imported unlawfully,” that was merely
an error. The amended PSR later stated that the enhancement applied only because “[t]he
[meth] the defendant obtained from Herrera was imported from Mexico.”
                                           10
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                                       No. 18-10874
among other things, a two-level reduction “[i]f the defendant was a minor
participant in any criminal activity.” That guideline is intended to account for
defendants who are “substantially less culpable than the average participant
in the criminal activity.” Id. at cmt. n.3(A). A minor-participant reduction is
appropriate for one “who is less culpable than most other participants in the
criminal activity, but whose role could not be described as minimal.” 11

       Whether a minor-participant reduction is appropriate turns “on the
totality of the circumstances.” U.S.S.G. § 3B1.2 cmt. n.3(C). The district court
should consider five factors concerning the defendant’s knowledge, planning,
authority, responsibility, and benefit from the illegal scheme. See id. The
court need not “expressly weigh each factor in § 3B1.2 on the record.” United
States v. Torres–Hernandez,
843 F.3d 203, 209
 (5th Cir. 2016). Instead, the
court sufficiently addresses the factors if the parties cite them and proffer facts
and contentions relating to them. 12

       Kearby contends that the § 3B1.2 factors “were not given individualized
consideration.” He maintains that because the PSR stated “only the bare
assertion and conclusion that ‘the defendant was an average participant in this
conspiracy,’” the district court “adopted only a conclusory statement with no
factual support.”      Kearby preserved that contention, so we evaluate “the



       11 Id. at cmt. n.5. This court looks to note 5 of the commentary to § 3B1.2 for the
definition of a minor participant. See, e.g., United States v. Martinez,
921 F.3d 452, 483
 (5th
Cir. 2019) (quoting U.S.S.G. § 3B1.2 cmt. n.5 in defining a “minor participant”).
       12Torres-Hernandez, 843 F.3d at 209–10; accord United States v. Ramirez-Esparza,
703 F. App’x 276
, 279–80 (5th Cir. 2017) (per curiam) (citation and quotation marks omitted):
       Ramirez-Esparza also argues that the district court erred by focusing on this
       one factor rather than considering all of the listed factors. We disagree. A
       district court is not required to expressly weigh each factor in § 3B1.2 on the
       record. The record reveals that the district court was presented with facts and
       arguments implicating other listed factors both in the PSR documents,
       Ramirez-Esparza’s written objections to the PSR, and at sentencing.
                                             11
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                                       No. 18-10874
district court’s interpretation and application of the sentencing guidelines
de novo and its findings of fact for clear error.”               United States v. Lord,
915 F.3d 1009, 1017
 (5th Cir.), cert. denied,
140 S. Ct. 320
 (2019).

       The district court did not err in refusing to apply a minor-participant
reduction. Before the court ruled, each party presented its contentions about
the enhancement. The court was apprised of the relevant factors in the gov-
ernment’s response to Kearby’s written objections to the PSR. See Torres–
Hernandez, 843 F.3d at 209–10. And, contrary to Kearby’s suggestions, the
court did not adopt a merely conclusory assertion when it approved the PSR’s
findings. The PSR’s addendum determined that Kearby “purchased and sold
[meth],” which is behavior part and parcel of a drug conspiracy. It then prop-
erly concluded that Kearby wasn’t entitled to a reduction. There is no error in
the decision not to apply a minor-participant reduction.

                                              D.
       Finally, 13 having found no procedural errors, we evaluate whether the
235-month sentence was substantively reasonable. Nguyen,
854 F.3d at 280
.
Kearby thinks it wasn’t, but he mainly repackages his complaints of procedural
error that we have already rejected. 14 Compounding the problem, Kearby
didn’t object to substantive reasonableness at sentencing, so we review for
plain error. United States v. Whitelaw,
580 F.3d 256
, 259–60 (5th Cir. 2009).



       13 Kearby also contends that the district court erroneously believed that the guidelines
were mandatory and that it wrongfully imposed an alternative sentence. But “[b]ecause we
do not consider arguments raised for the first time in a reply brief, we decline to address
[those] issue[s].” United States v. Transocean Deepwater Drilling, Inc.,
767 F.3d 485, 492
(5th Cir. 2014).
       14Kearby asserts, for example, that the district court violated the Constitution in
sentencing him “on the basis of [in]accurate information”; that purchases for individual use
shouldn’t have been considered; and that the court shouldn’t have relied on Herrera’s state-
ments to investigators.
                                              12
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                                 No. 18-10874
Under that (or any) standard, Kearby doesn’t overcome the “rebuttable pre-
sumption of reasonableness” of a within-guideline sentence like his. United
States v. Smith,
440 F.3d 704, 707
 (5th Cir. 2006). The sentence was reasona-
ble in light of Kearby’s extensive criminal history, and the district court ade-
quately considered the
18 U.S.C. § 3553
(a) factors. Accordingly, the judgment
of sentence is AFFIRMED.




                                      13