     Case: 19-10402      Document: 00515356177         Page: 1    Date Filed: 03/23/2020




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


                                    No. 19-10402                                 FILED
                                  Summary Calendar
                                                                           March 23, 2020
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LESTER POLTY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-293-3


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Lester Polty appeals the 240-month sentence imposed following his
guilty plea to a charge of conspiracy to possess with the intent to distribute a
controlled substance. He asserts that the evidence is insufficient to support
the two-level, U.S.S.G. § 3B1.1(c) enhancement he received for being a leader,
organizer, manager, or supervisor of criminal activity.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 19-10402        Document: 00515356177          Page: 2     Date Filed: 03/23/2020


                                        No. 19-10402

       The district court’s determination that Polty was a leader or organizer
under § 3B1.1(c) is a factual finding that we review for clear error. United
States v. Alaniz, 726 F.3d 586, 622 (5th Cir. 2013). “There is no clear error if
the district court's finding is plausible in light of the record as a whole.” United
States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012) (internal quotation marks
and citation omitted). “A finding of fact is clearly erroneous only if, after
reviewing all the evidence, we are left with the definite and firm conviction
that a mistake has been committed.”                 Id. (internal quotation marks and
citation omitted). We may affirm the judgment of the district court on any
grounds supported by the record. See United States v. McSween, 53 F.3d 684,
687 n.3 (5th Cir. 1995).
       Section 3B1.1(c) provides for a two-level enhancement “[i]f the defendant
was an organizer, leader, manager, or supervisor in any criminal activity other
than described in [§ 3B1.1](a) or (b).” § 3B1.1(c). This increase is applicable
“even where a defendant did not exercise control over another participant, if
he exercised management responsibility over the property, assets, or activities
of a criminal organization.” United States v. Ochoa-Gomez, 777 F.3d 278, 282-
83 (5th Cir. 2015). 1 A district court may adopt the facts in a presentence report
(PSR) without additional inquiry “if those facts have an evidentiary basis with
sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable.”     United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)
(internal quotation marks and citation omitted).




       1“We note that members of the court have urged en banc review of [this interpretation]
because it ‘conflate[s] an “adjustment” and an “upward departure” for purposes of Application
Note 2 to [§3B1.1].’” United States v. Alvarez, 761 F. App’x 363, 364 n.1 (5th Cir. 2019) (citing
Ochoa-Gomez, 777 F.3d at 284–85 (Prado and Elrod, JJ., concurring)).


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    Case: 19-10402     Document: 00515356177      Page: 3   Date Filed: 03/23/2020


                                  No. 19-10402

      The PSR provided that a participant in the criminal activity acted under
Polty’s direction. It also established that Polty negotiated drug purchases,
arranged and sold drugs directly to other distributors, found a new supplier in
late 2017, sold drugs in large quantities, and had digital scales and wrapping
with heroin residue in his residence. Even if the information in the PSR was
not sufficient to establish that Polty exercised control over another
participant’s   actions,   it   showed   that   Polty   exercised   “management
responsibility over the property, assets, or activities of [the] criminal
organization.” Ochoa-Gomez, 777 F.3d at 282-83; United States v. Delgado,
672 F.3d 320, 344-45 (5th Cir. 2012) (en banc). Based on the information in
the PSR, the application of the § 3B1.1(c) enhancement was plausible in light
of the record as a whole. See § 3B1.1, comment. (n.4); Serfass, 684 F.3d at 550;
see also United States v. Dickerson, 909 F.3d 118, 127-28 (5th Cir. 2018), cert.
denied, 139 S. Ct. 2685 (2019).
      The judgment of the district court is AFFIRMED.




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