     Case: 16-11693      Document: 00514279795         Page: 1    Date Filed: 12/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-11693                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 20, 2017
                                                                           Lyle W. Cayce
              Plaintiff – Appellee,                                             Clerk

v.

NOE DAVALOS-COBIAN,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CR-122


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Noe Davalos-Cobian pleaded guilty to conspiracy
to distribute methamphetamine. The calculation of the quantity of drugs
attributed to him at sentencing was based on a conversion of the monetary
value he received for the liquid methamphetamine that he had distributed.
The formula used for that conversion calculated the total quantity of
methamphetamine distributed based on the dollar value of one kilogram of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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liquid methamphetamine. The methamphetamine had been distributed in
crystalline form, so the resulting amount was then multiplied by the average
purity percentage from samples of crystalline methamphetamine previously
seized from a co-conspirator that had been converted from liquid
methamphetamine.
      Davalos-Cobian appeals the calculation of the relevant conduct
attributed to him. We conclude that the district court erred in calculating his
sentence and VACATE Davalos-Cobian’s sentence and REMAND for
resentencing.
                                      I.
      Davalos-Cobian pleaded guilty to one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. § 846.          He supplied liquid
methamphetamine, which he had acquired from an undisclosed source in
Mexico, to a distributor here, Estevan Sidon-Gonzalez. Davalos-Cobian was
paid by Sidon-Gonzalez or his couriers. Sidon-Gonzalez then converted the
liquid methamphetamine to the crystalline form for distribution.       On two
occasions, task force officers working with the Drug Enforcement Agency
intercepted phone calls between Davalos-Cobian and Sidon-Gonzalez during
which they discussed the amounts due. The amounts discussed during the
phone calls totaled $54,500.
      The probation office prepared a Presentence Investigation Report (PSR)
after Davalos-Cobian pleaded guilty. There was no drug seizure in the case,
so the probation office calculated the approximate quantity of the controlled
substance to determine Davalos-Cobian’s base offense level. In doing so, the
probation office divided the $54,500 discussed on the phone calls by $8,000,
which was the average price paid by Sidon-Gonzalez to Davalos-Cobian for a
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                                 No. 16-11693


kilogram of liquid methamphetamine. That formula yielded a total of 6.81
kilograms of liquid methamphetamine as the relevant quantity. The liquid
methamphetamine received by Sidon-Gonzalez was not in “user form,” so
Sidon-Gonzalez would convert it to crystalline form. The average purity of the
crystalline methamphetamine distributed by Sidon-Gonzalez was 92.1 percent
based on the samples seized.           The average purity of the liquid
methamphetamine samples seized from another co-conspirator, Jesus Sidon,
was 48.6 percent.
       To calculate the total amount of methamphetamine for which Davalos-
Cobian was accountable, the probation office multiplied the 6.81 kilograms of
liquid methamphetamine by the 92.1 percent average purity of the crystalline
methamphetamine samples seized from Sidon-Gonzalez.              The resulting
distribution attributed to Davalos-Cobian in the PSR was 6.27 kilograms of
“methamphetamine actual.” The base offense level for an offense involving 4.5
kilograms or more of methamphetamine actual, as calculated under United
States Sentencing Guideline § 2D1.1, is 38.
       Davalos-Cobian objected to the purity percentage from the crystalline
form of the methamphetamine being applied to the liquid methamphetamine
base. He argues that if there were no conversion to methamphetamine actual,
the resulting base offense level would have been lower. He also objected to the
use of the purity percentage from another co-conspirator’s samples, contending
there was no indication that those samples were derived from or representative
of the liquid methamphetamine base that he had distributed.
       The district court overruled Davalos-Cobian’s objections and adopted the
PSR.     The district court sentenced Davalos-Cobian to 262 months
imprisonment, which is at the low end of the guideline range applied by the
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district court. At the sentencing hearing, the district court stated: “[G]iven the
sophisticated nature of the defendant’s role in this case and given the
expansive nature of the conspiracy as a whole, this is the sentence I otherwise
would impose . . . so even if I’m wrong as to the objections, this is the sentence
I otherwise would impose.” Davalos-Cobian’s counsel objected at sentencing to
the reasonableness of the sentence. Davalos-Cobian then timely appealed.
                                        II.
      When a defendant preserves a sentencing error in the district court, we
review that court’s interpretation and application of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).            The sentencing court’s
calculation of the quantity of drugs is a factual finding that we review for clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A factual
finding is clearly erroneous “only if, based on the entire evidence, we are left
with the definite and firm conviction that a mistake has been committed.”
United States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014) (citation omitted).
There also must be sufficient indicia of reliability in the calculation of relevant
conduct that a multiplier estimate is “reasonably representative” of the actual
conduct. See United States v. Cabrera, 288 F.3d 163, 172 (5th Cir. 2002); see
also United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir. 1992).
      Davalos-Cobian argues that the sentencing court erred in calculating his
relevant conduct because he had handled only liquid methamphetamine. He
insists that the drug quantity attributed to him should not have been
calculated using the quantity of methamphetamine actual. Davalos-Cobian
also argues that the sentencing court erred in using the 92.1 purity percentage
in the calculation, as the PSR did not establish that Sidon-Gonzalez’s samples
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were derived from the liquid methamphetamine that he had received from
Davalos-Cobian. Davalos-Cobian contends that if any purity percentage were
to be applied, it should have been the lower purity percentage of 48.6
determined from Jesus Sidon’s liquid samples.
      “The district court’s factual findings of the amount of drugs involved
must be supported by what it could fairly determine to be a preponderance of
the evidence” that has “sufficient indicia of reliability.” Sherrod, 964 F.2d at
1508. Here, the district court adopted the PSR, which attributed to Davalos-
Cobian a drug quantity based on the form in which his co-conspirator
distributed    the   methamphetamine           and   not   based   on   the        form   of
methamphetamine that Davalos-Cobian actually distributed. Davalos-Cobian
contends this was error, arguing that the PSR does not contain evidence with
sufficient    indicia   of   reliability   tying     the   samples      of    crystalline
methamphetamine          seized     from       Sidon-Gonzalez      to        the     liquid
methamphetamine Davalos-Cobian distributed. We agree.
      The PSR states that Sidon-Gonzalez received liquid methamphetamine
from couriers other than the couriers employed by Davalos-Cobian. The task
force officers only intercepted phone calls between Davalos-Cobian and Sidon-
Gonzalez discussing the sale of liquid methamphetamine. In fact, the PSR
indicated that Sidon-Gonzalez had problems converting Davalos-Cobian’s
liquid methamphetamine to the crystalline form. We conclude that there was
not sufficiently reliable evidence to connect the crystalline methamphetamine
samples seized from Sidon-Gonzalez to the liquid methamphetamine
distributed by Davalos-Cobian, as the PSR states Sidon-Gonzalez had other
suppliers and he had issues converting the methamphetamine received from
Davalos-Cobian to crystalline form. In fact, there is no reliable evidence in the
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PSR as to whether Davalos-Cobian’s liquid methamphetamine was ever
converted to crystalline form by Sidon-Gonzalez.
         Moreover, even if there were such evidence, there was not a reliable
metric for calculating the drug quantity attributable to Davalos-Cobian in
quantities of methamphetamine actual. All the PSR mentions in terms of
values by which to make such a determination is the price per kilogram of
liquid     methamphetamine.       The   average    purity   of   the   crystalline
methamphetamine samples seized from Davalos-Cobian’s co-conspirators
varies vastly. One co-conspirator’s samples had a 92.1 percent purity average
and the other’s had a 48.6 percent purity average. The PSR used only the
higher average without explanation for not including the full range of samples
seized in calculating the purity percentage for the conversion. Even if it was
appropriate to attribute to Davalos-Cobian the crystalline methamphetamine
that Sidon-Gonzalez ultimately distributed, there was not sufficient evidence
to create a reliable metric by which to make that conversion in the PSR.
         As discussed below, whether Davalos-Cobian’s drug quantity was
calculated as liquid methamphetamine or methamphetamine actual makes a
significant difference in his guideline range.     It is particularly important,
therefore, that there is a sufficiently reliable method for calculating a
conversion of the price of liquid methamphetamine to a weight measurement
of methamphetamine actual. The record is devoid of any evidence that would
allow the district court to reliably make that calculation. As such, we are left
with a definite and firm conviction that it was error to attribute a drug quantity
to Davalos-Cobian based on a conversion to methamphetamine actual as
opposed to attributing to him the amount of liquid methamphetamine that
could reliably be calculated from the prices discussed on the phone calls. There
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was only reliable evidence sufficient to calculate the amount of liquid
methamphetamine that Davalos-Cobian distributed.
      Concluding that the district court did commit procedural error, we now
turn to whether this error was harmless. A procedural error is harmless and
does not require reversal if it does not affect the selection of the sentence
imposed. United States v. Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir.
2009). “But it is the Government’s ‘heavy burden’ to prove that (1) ‘the district
court would have imposed a sentence outside the properly calculated
sentencing range for the same reasons it provided at the sentencing hearing’
and (2) ‘the sentence the district court imposed was not influenced in any way
by the erroneous Guidelines calculation.’” United States v. Juarez, 866 F.3d
622, 634 (5th Cir. 2017) (quoting United States v. Martinez-Romero, 817 F.3d
917, 924 (5th Cir. 2016)).
      It is true we have held that sentencing courts’ statements such as the
one in this case—that the district court would impose the same sentence even
if it were wrong as to the objection—may sometimes be a sufficient basis to
conclude that any potential error was harmless. See, e.g., Sanchez, 850 F.3d
767, 769–70 (5th Cir. 2017) (holding any potential error harmless where the
sentencing court stated that “to the extent [it] erred in the application of the
enhancement . . . the sentence would still be the same”). We have also held,
however, that such statements do not establish harmless error when they fail
to show that the district court was not influenced by the improperly calculated
range.   See, e.g., Juarez, 866 F.3d at 634–35 (holding that “while the
Government has proved that the district court would have departed from the
correct range, it has not convincingly shown that the . . . sentence was not
influenced by the improperly calculated range”).
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      Here, the district court stated that it would have imposed the same
sentence even if it had improperly calculated the base offense level. The
district court did not indicate, however, that it was not influenced by the
improperly calculated range. Indeed, if the PSR had not converted the amount
of liquid methamphetamine calculated to methamphetamine actual, Davalos-
Cobian’s base offense level would have been 34 instead of 38 under United
States Sentencing Guideline § 2D1.1(c).       This would have resulted in a
guideline range of 168–210 months after including the same adjustments
applied by the probation office based on the specific offense. The difference
between this range and the range the district court considered at the
sentencing hearing is almost eight years. In light of this significant difference
between these two ranges and the fact that there is no clear evidence that the
court considered the correct range, we conclude that the Government has not
met its heavy burden to prove harmless error.
                                      IV.
      We VACATE Davalos-Cobian’s sentence and REMAND to the district
court for resentencing consistent with this opinion.




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