     Case: 16-11816      Document: 00514232591         Page: 1    Date Filed: 11/09/2017




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

                                    No. 16-11816
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         November 9, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

WAYNE LAMARR WORLEY, JR.,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:16-CR-108-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Wayne Lamarr Worley, Jr. appeals his below-guidelines-range sentence
of 188 months imposed following his guilty plea to possession with intent to
distribute methamphetamine. Worley argues that the district court erred in
accepting the drug quantity calculation in the presentence report because the
information in the presentence report (PSR) lacked sufficient indicia of
reliability.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11816       Document: 00514232591     Page: 2   Date Filed: 11/09/2017


                                    No. 16-11816

         Worley asserts that his argument is foreclosed by this Circuit’s precedent
but seeks to preserve it for further possible review. See United States v. Alaniz,
726 F.3d 586, 619 (5th Cir. 2013). The Government has filed a motion for a
summary affirmance or, alternatively, for an extension of time to file a merits
brief.
         Summary affirmance is proper when, among other instances, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Although a district
court ordinarily may rely on the PSR if there is no rebuttal evidence, a
defendant may still argue that the PSR does not have sufficient indicia of
reliability because the findings are conclusional and rely on incorrect facts. See
United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993). Because the
reliability of a PSR is thus dependent on the facts of the particular case,
summary affirmance is not an appropriate disposition.
         Nevertheless, on the facts of this case, Worley’s arguments fail. The
defendant has the burden of presenting evidence to show that the facts
contained in the PSR are inaccurate or materially untrue. See Alaniz, 726 F.3d
at 619. Worley did not rebut the detailed findings in the PSR concerning the
estimate of the drug quantity attributed to him were not reliable or credible.
The district court’s factual findings were plausible in light of the record as a
whole and, thus, the findings were not clearly erroneous. Id. at 618.
         Accordingly, the sentence is AFFIRMED, the Government’s motion for
summary affirmance is DENIED, and the Government’s alternative motion for
an extension of time to file a brief is DENIED.




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