     Case: 18-10639      Document: 00514999974         Page: 1    Date Filed: 06/18/2019




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

                                    No. 18-10639                            FILED
                                  Summary Calendar                      June 18, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICHIE LOUIS KRASE, also known as “Krazy Kraze”, also known as Sean
Haas, also known as Richard Louis Kraze, also known as Richie Louis Kraze,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-198-7


Before DENNIS, CLEMENT, AND OWEN, Circuit Judges.
PER CURIAM: *
       Richie Louis Krase appeals his 250-month term of imprisonment
imposed following his guilty plea conviction for conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, a controlled
substance. Krase has failed to adequately brief his arguments that (1) the
district court clearly erred in not relying on the statements of coconspirators



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-10639

who testified at a trial, (2) his sentence should not be upheld based on the
statements of coconspirators that were not supported by evidence, and (3) he
was held accountable for drug transactions that occurred while he was
incarcerated. Therefore, he has abandoned those claims on appeal. See FED.
R. APP. P. 28(a)(8)(A); United States v. Cothran, 302 F.3d 279, 286 n.7 (5th Cir.
2002).
      Krase argues that the district court overestimated the drug quantity
attributed to him at sentencing because the amounts were based on statements
of a coconspirator who did not testify at trial and who was not subject to cross-
examination. Krase preserved this error by objecting at sentencing; therefore,
this court reviews the sentencing court’s factual findings for clear error and its
interpretation or application of the Guidelines de novo. See United States v.
Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal
quotation marks and citation omitted). The district court heard the testimony
of the case agent relative to the information provided by Shanda Hawkins, a
coconspirator, concerning Krase’s role in the conspiracy and the testimony of
Krase indicating that he had a very limited role in the drug-trafficking
conspiracy.   After considering the competing evidence, the district court
concluded that the preponderance of the reliable evidence showed that Krase
was involved with 1.62 kilograms of methamphetamine, a finding that is
entitled to deference. See United States v. Harris, 702 F.3d 226, 231 (5th Cir.
2012); United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006). The district
court’s determination of the drug quantity attributable to Krase was “plausible
in light of the record read as a whole,” and, therefore, was not clearly




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erroneous. See Betancourt, 422 F.3d at 246 (internal quotation and citation
omitted).
      Next, Krase asserts that the district court clearly erred in making a two-
level enhancement of his base offense level for use of a dangerous firearm
during the drug activity based on a single ambiguous statement by Hawkins
that Krase was “known to carry a gun.” Krase preserved this error by filing an
objection to the enhancement. See Gomez-Alvarez, 781 F.3d at 791. Section
2D1.1(b)(1) provides for a two-level enhancement if the defendant possessed a
dangerous weapon in connection with the offense. In addition to Hawkins’s
statement to law enforcement that Krase was observed in possession of a
weapon, the probation officer advised that a second coconspirator had reported
that Krase was seen in possession of a firearm on three occasions during the
conspiracy. Krase did not present any rebuttal evidence showing that this
information was “materially untrue, inaccurate or unreliable.” See Harris, 702
F.3d at 230 (internal quotations and citation omitted).      Thus, the district
court’s determination that Krase possessed a dangerous weapon during drug-
trafficking activity was “plausible in light of the record read as a whole,” and,
therefore, was not clearly erroneous. See Betancourt, 422 F.3d at 246 (internal
quotation and citation omitted); United States v. Vital, 68 F.3d 114, 119 (5th
Cir. 1995).
      Additionally, Krase contends that the district court clearly erred in
overruling his objection to the two-level adjustment to his offense level based
on the possession and distribution of methamphetamine imported from
Mexico. The two-level U.S.S.G. § 2D1.1(b)(5) enhancement applies if “the
offense involved the importation of amphetamine or methamphetamine” and
the defendant does not receive a mitigating role adjustment. Krase was not
found to have a mitigating role in the offense. Possession with intent to



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                                  No. 18-10639

distribute imported methamphetamine “without more” subjects the defendant
to the § 2D1.1(b)(5) enhancement, even if he is not personally involved in the
importation or does not know that the methamphetamine was imported. See
United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014). Based on reliable
evidence in the record, it was plausible for the district court to determine that
Krase was in possession of imported methamphetamine with the intent to
distribute it. See Foulks, 747 F.3d at 915; Betancourt, 422 F.3d at 246. Thus,
the district court did not clearly err in making the enhancement under
§ 2D1.1(b)(5). See id.
      Krase complains that there were inappropriate references in the
presentence report (PSR) to his affiliation with a white supremacy gang
because he had ended his association with that gang. He further complains
that did not receive adequate “credit” for participating in the state prison’s
Gang Renunciation and Disassociation program because he was unable to
complete the program since a federal writ was issued for his presence in this
case. Krase has not demonstrated that there was any incorrect information in
the PSR relative to his past gang affiliation or that improper consideration was
given to that affiliation by the district court at his sentencing. The district
court’s ruling was not clearly erroneous. See Betancourt, 422 F.3d at 246.
      Last, Krase argues that the district court erred in overruling his
objection to the district court’s reliance on a drug offense charge that was
dismissed to enhance his criminal history score. The offense was listed in the
“other criminal conduct” section of the PSR, where it was stated that the case
was dismissed due to prosecutorial discretion. The PSR clearly stated that this
offense had no effect on the determination of Krase’s sentencing guidelines
range, and the district court agreed with the findings in the PSR. Krase has
not demonstrated that the information in the report was incorrect and,



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therefore, the district court did not clearly err in overruling the objection. See
Betancourt, 422 F.3d at 246.
      Except for his briefing of the drug quantity issue, appointed counsel
failed to comply with the briefing requirements of Federal Rule of Appellate
Procedure 28(a). Counsel should be mindful of his responsibility to file an
adequate brief, and counsel is CAUTIONED that the filing of similar
inadequate briefs in the future may result in the imposition of sanctions. See
United States v. Alaniz, 569 F. App’x 219, 221 (5th Cir. 2014).
      AFFIRMED.




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