     Case: 16-11523      Document: 00514097917         Page: 1    Date Filed: 08/01/2017




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

                                    No. 16-11523
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                            August 1, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

CHRIS SPHABMISAI, also known as "Chino,"

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-111-5


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Chris Sphabmisai appeals the 200-month within-guidelines sentence
imposed following his guilty plea conviction for conspiracy to possess with
intent to distribute methamphetamine.               Sphabmisai first challenges the
procedural reasonableness of his sentence, arguing that the district court erred
in determining the quantity of methamphetamine attributable to him under
the Sentencing Guidelines. Specifically, he asserts that the presentence report


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11523

(PSR) “evidence used in attributing particular drug quantities to him lacked
the requisite indicia of reliability to support that information’s accuracy.” He
maintains that the PSR’s drug quantity evidence was “derived solely from
presumptively unreliable co-defendants’ statements and uncorroborated
confidential informant information.”
      Because Sphabmisai did not raise these arguments in the district court,
our review is limited to plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009).          The amount of methamphetamine
attributable to Sphabmisai is a finding of fact. See United States v. Harris, 740
F.3d 956, 966 (5th Cir. 2014). “Questions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). As such, the
district court’s finding of the applicable drug quantity cannot constitute plain
error. See id. Even if we were not bound by Lopez, Sphabmisai cannot show
plain error. Sphabmisai relies on a Third Circuit’s opinion in which the Court
found the informant’s statement regarding the quantity of drugs was
unreliable because the informant had made vastly inconsistent statements at
the trial of a co-conspirator. United States v. Miele, 989 F.2d 659, 664 (3rd Cir.
1993). Miele is inapposite. In that case, the defendant had objected to the
evidence, which required the district court to resolve the dispute under Federal
Rule of Criminal Procedure 32(c)(3)(D). Id. The Court also noted that “no other
witnesses testified as to specific drug quantities.” Id. at 665. In contrast, here,
Sphabmisai did not object to the evidence.          Moreover, the instant PSR
contained other evidence that Sphabmisai had obtained specific drug
quantities from his named co-conspirators. Thus, Miele does not demonstrate
that the district court committed plain error. Nor would we be inclined to use
our discretion to correct any error.



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                                 No. 16-11523

      Sphabmisai     next   contends   that   his   sentence   is   substantively
unreasonable because the methamphetamine Guideline, U.S.S.G. § 2D1.1, is
not empirically based. He did not preserve this issue in the district court and,
thus, our review is for plain error. See United States v. Heard, 709 F.3d 413,
425 (5th Cir. 2013). “A discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).                Sphabmisai’s
contention is unavailing. The district court was not required to question the
empirical grounding behind § 2D1.1. See United States v. Duarte, 569 F.3d
528, 530-31 (5th Cir. 2009). Sphabmisai has therefore failed to rebut the
presumption of reasonableness attached to his within-guidelines sentence,
much less shown plain error. See Heard, 709 F.3d at 425; Campos-Maldonado,
531 F.3d at 338.
      The judgment of the district court is AFFIRMED.




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