     Case: 18-10472      Document: 00515078480         Page: 1    Date Filed: 08/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-10472                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 15, 2019
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk


v.

KATHRYN WOODIN MARKLE, also known as "Boxer",

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-159-3


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Kathryn Markle pleaded guilty of conspiracy to possess with intent to
distribute a controlled substance. Markle’s presentence report (“PSR”) was
based on interviews with several law enforcement officers and compiled
numerous accounts of Markle purchasing methamphetamine from at least
three different sellers. Based on these accounts, the PSR concluded that
Markle was accountable for a total of 6.9 kilograms of methamphetamine,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10472
resulting in a base offense level of 34 under the Sentencing Guidelines. See
U.S.S.G. § 2D1.1(c)(3). After an enhancement for possession of a firearm during
the conspiracy, see id. § 2D1.1(b)(1), and a reduction for acceptance of
responsibility, see id. § 3E1.1, the PSR calculated Markle’s total offense level
at 33, resulting in a guidelines range of 135 to 168 months.
      At her sentencing hearing, Markle challenged the PSR’s findings on the
quantity of drugs she had purchased 1 and on her possession of a firearm, and
also argued for a downward variance. In support of her challenge to the PSR,
Markle called Robert Young, an investigator from the Hood County, Texas
District Attorney’s office who had given her a polygraph exam. Young testified
that, in the polygraph, Markle denied receiving drugs in the quantities alleged
in the PSR and denied having traded a firearm for drugs. Young estimated the
chance that Markle was being truthful in these responses at “about 84%.”
Markle also called private investigator Scott Porter, who had interviewed one
of Markle’s co-conspirators, Richard Lee Pinto, by telephone. The PSR had
estimated that Markle received a total of over 600 grams of methamphetamine
from Pinto. Porter testified that, according to Pinto, Pinto had only occasionally
provided Markle with methamphetamine, and although they had smoked
methamphetamine together, the total amount was “at most” a quarter of an
ounce (approximately 7 grams). In response, a DEA Agent testified that
evidence from other co-conspirators, which supported the PSR’s findings of
higher quantities of methamphetamine, was credible whereas Pinto’s
testimony was not.
      The district court overruled Markle’s objections to the PSR. In doing so,
the court criticized the wording of the polygraph questions and opined that



      1Had Markle been found responsible for less than five kilograms of
methamphetamine, her total offense level would have dropped by two. See id. § 2D1.1(c).
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                                  No. 18-10472
Markle might have given different answers if the questions had been better
phrased. The court also “g[a]ve more credence” to the interview reports
provided by the Government “than [to] what Mr. Pinto might have said over
the telephone.” Therefore, the court adopted the PSR’s conclusions regarding
drug quantity and firearm possession and gave Markle a low-end sentence of
135 months in prison.
      Markle raises two issues on appeal: whether the district court
improperly overruled her objections to the PSR, and whether her 135-month
sentence was substantively unreasonable. “The district court’s calculation of
the quantity of drugs involved in an offense is a factual determination,” and
will be reversed only if “clearly erroneous.” United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005). The same standard applies to a finding that a
defendant possessed a firearm. United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010). “A factual finding is not clearly erroneous if it is plausible in light
of the record read as a whole.” United States v. Akins, 746 F.3d 590, 609 (5th
Cir. 2014). A sentence’s reasonableness is reviewed “under a deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
      Markle has not shown error on either issue. When sentencing a
defendant, a court may consider relevant information “provided that the
information has sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a). A PSR “generally bears sufficient indicia of
reliability to be considered as evidence by the sentencing judge in making
factual determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir.
2010). In this case, the PSR was supported by statements garnered from police
interviews of Markle’s co-conspirators. A “district court may properly find
sufficient reliability on a presentence investigation report which is based on
the results of a police investigation.” United States v. Fuentes, 775 F.3d 213,
220 (5th Cir. 2014).
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                                  No. 18-10472
      Markle’s countervailing evidence, consisting of a polygraph exam and
the results of a telephone interview with Pinto, is insufficient to rebut the PSR.
“[T]here is simply no consensus that polygraph evidence is reliable.” United
States v. Scheffer, 523 U.S. 303, 309 (1998). The district court here did not
reject polygraph evidence categorically, but simply did not “accept it over the
other information that the probation officer legitimately relied on” in crafting
the PSR. Whether to admit polygraph evidence at all is a “necessarily flexible
inquiry” that is “left to the sound discretion of the trial court.” United States v.
Pettigrew, 77 F.3d 1500, 1514 (5th Cir. 1996). Given that flexibility, Markle
has not shown that the court’s decision to trust the PSR over the polygraph
was an abuse of discretion. Markle’s reliance on Pinto’s testimony fares no
better. The district court expressly found Pinto’s statements less credible than
the evidence from other co-conspirators. “Credibility determinations are
peculiarly within the province of the trier-of-fact,” United States v. Sarasti, 869
F.2d 805, 807 (5th Cir. 1989), and we will not overturn the district court’s
determination here. We see no reason to believe that adopting the PSR’s
findings was “clearly erroneous.”
      Finally, Markle’s challenge to the substantive reasonableness of her
sentence also fails. “Appellate review for substantive reasonableness is highly
deferential, because the sentencing court is in a better position to find facts
and judge their import . . . with respect to a particular defendant.” United
States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). Markle, in essence, asks us
to reweigh the sentencing factors, which we will not do. While Markle did put
forward several mitigating factors, none required imposing a lesser sentence.
The district court considered the mitigating factors and concluded that “a
sentence at the very bottom of the guideline range would be . . . appropriate[.]”
We see no abuse of discretion in that determination.
      AFFIRMED
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