                                               United States Court of Appeals
                                                        Fifth Circuit
                                                     F I L E D
            UNITED STATES COURT OF APPEALS             March 9, 2007
                 FOR THE FIFTH CIRCUIT
                                                 Charles R. Fulbruge III
                                                         Clerk



                       No. 06-50110


               UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,
                          VERSUS

        ROBERT R. BRITTON, JR.; ROBIN GATEWOOD,

                                   Defendants-Appellants.




        Appeal from the United States District Court
            For the Western District of Texas

                    (7:05-CR-138-3)

Before REAVLEY, DeMOSS, and BENAVIDES, Circuit
Judges.

PER CURIAM:*


    *
     Pursuant to 5th Cir. R. 47.5, the Court has
determined that this opinion should not be published and
    Defendants-Appellants Robert Britton and Robin

Gatewood were indicted and tried together for their

involvement in a conspiracy to sell cocaine base ("crack")

in Midland, Texas. A jury convicted each appellant of

conspiracy to possess and distribute fifty grams or more of

crack (count one) and aiding and abetting each other to

possess with the intent to distribute 500 grams or more of

powder cocaine (count three). Gatewood was additionally

convicted of aiding and abetting two others in the

possession with intent to distribute five or more grams of

crack (counts four and nine). The district court sentenced

Britton to 188 months imprisonment. Gatewood received

four concurrent life sentences. Each appellant raises one

point of error.



is not precedent except under the limited circumstances
set forth in 5th Cir. R. 47.5.4.
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                             I.

    Police in Midland, Texas conducted an exhaustive

investigation into a drug ring they suspected was

distributing crack cocaine in 2004 and 2005. The

investigation revealed at least eight individuals were

involved in the conspiracy; some purchased powder cocaine

and turned it into crack, and others distributed it in and

around   Midland.   Following     the   conclusion   of   the

investigation, a grand jury returned an eleven count

indictment against, among others, Britton and Gatewood.

    Britton's involvement in the conspiracy is not

materially disputed on appeal. At trial, co-conspirator

Carmellia Price, who previously pled guilty, testified that

Britton primarily served as a driver for Gatewood and other

co-conspirators. She recalled a number of instances when

Britton provided rides in exchange for crack. In particular,

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she testified that Britton drove Gatewood and herself to

Lubbock to buy cocaine on at least one occasion. In April

2005, officers questioned Britton and he admitted traveling

to Lubbock with Gatewood in 2004 to pick up two

kilograms of cocaine.

    Co-conspirator Price further testified she began buying

crack from Gatewood around June 2004. She also stated

she sold crack for Gatewood, sometimes in quantities of

more   than   three-quarters      of   an   ounce   per   week

(approximately    21    grams).    Further,   she   witnessed

Gatewood sell crack to others on numerous occasions,

including one transaction involving a Crown Royal bag

containing a considerable amount of crack.

    Twakeshia Howard, another co-conspirator who pled

guilty and testified at trial, stated that she also sold crack

obtained from Gatewood. She would obtain crack from

                              4
Gatewood worth $200 to $300 several times per week to

re-sell. She also testified that she occasionally traveled to

Lubbock with Gatewood and Britton to buy cocaine.

Co-conspirators John Smith and Shanskurria Sheppard gave

similar testimony. Each obtained crack from Gatewood to

re-sell, and each recounted various drug deals they

witnessed involving Gatewood. Another drug dealer, Nigel

Harris, testified that he witnessed Gatewood purchase 250

grams of powder cocaine on one occasion.

    In addition to testimony concerning the Appellants'

involvement, the government presented evidence to

establish the existence and scope of the conspiracy, the

quantity and type of drugs seized during the investigation,

and the conversion ratio of powder cocaine to crack.

    At sentencing, the district court attributed to Britton

1.5 kilograms of crack for his role in the conspiracy, based

                              5
on the fact Britton admitted to picking up two kilograms of

powder cocaine.

                                II.

    On appeal Britton challenges the district court’s finding

that two kilograms of powder cocaine translates into 1.5

kilograms of crack for sentencing purposes. “This Court

reviews   for   clear   error    a    district   court's   factual

determination regarding, for sentencing purposes, the

quantity of drugs used to establish a base offense level. . .

” United States v. Turner, 319 F.3d 716, 724 (5th Cir.

2003). Such a finding is clearly erroneous if it is not

plausible “in light of the record as a whole.” Id. (quoting

United States v. Johnston, 127 F.3d 380, 403 (5th Cir.

1997)).

    The district court is required to find the quantity of

drugs by a preponderance of the evidence. Johnston, 127

                                6
F.3d at 403. Britton admitted obtaining two kilograms of

powder cocaine in Lubbock. Consequently, Britton does not

challenge the district court’s finding that two kilograms of

powder cocaine are attributable to him; he merely

challenges the ratio used by the court to equate the powder

cocaine to crack.

    Equating a quantity of cocaine to crack for sentencing

purposes is allowed by the guidelines, and Britton has not

challenged on appeal the fact the court did so. See United

States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003)

(“Conversion of powder cocaine to crack cocaine for

sentencing purposes is permissible if such conversion was

foreseeable to the defendant.”).

    No evidence was presented concerning how much

crack was actually produced from the powder cocaine

purchased in Lubbock. So to determine the proper

                             7
conversion ratio, the PSR writer relied on testimony from

several police officers who stated that two kilograms of

powder cocaine can be made into four kilograms of crack (a

1 to 2 ratio). Nigel Harris, the admitted drug dealer who

testified at trial, also estimated a conversion ratio of 1 to 2.

    The PSR adopted this estimate. However, the district

court did not adopt the PSR’s conversion ratio and instead

attributed 1.5 kilograms of crack to Britton for his role in

the conspiracy (a 1 to .75 ratio).

    We find the district court’s conversion ratio (1 to .75)

to be a reasonable estimate based on the testimony, and

hold it did not constitute clear error. The ratio was lower

than all of the conversion ratios presented at sentencing,

except one. While the ratio used here was higher than in

United States v. Booker, 334 F.3d 406, 414 n.3 (5th Cir.

2003) (mentioning a 1 to .5 ratio), that case did not

                               8
establish the correct ratio as a matter of law. See id. at

413-14 & n.3. The ratio in Booker was not an issue and the

court merely mentioned the ratio in a footnote. See id. at

414 n.3.

     Even if it was error to apply the 1 to .75 ratio as

opposed to the 1 to .5 ratio from Booker, the sentence here

is   nonetheless   presumed        reasonable.    The   properly

calculated guideline range using the Booker ratio (1 to .5)

is 168 to 210 months. Because the 188-month sentence

imposed by the court falls within this 168 to 210 range it is

presumptively reasonable. See United States v. Medina-

Arguenta, 454 F.3d 479, 483 (5th Cir. 2006) (holding that

when a court “miscalculates the guideline range yet

imposes a sentence that falls within a properly calculated

guideline range, the sentence enjoys a presumption of

reasonableness.”).   Britton       has   not     overcome   that

                               9
presumption. Thus, we find no error and affirm Britton’s

sentence.

    In his appeal, Gatewood challenges the sufficiency of

the evidence. After reviewing the briefs, record, and

applicable law, we find that a rational jury could have found

the essential elements of the crime beyond a reasonable

doubt. See United States v. Patterson, 431 F.3d 832, 836

(5th Cir. 2005). Thus, we find no error and affirm.

AFFIRMED.




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