     Case: 17-41232      Document: 00514973449         Page: 1    Date Filed: 05/28/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 17-41232
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                    May 28, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                                 Plaintiff-Appellee

v.

BRANDON RAY WILLIAMS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:17-CR-37-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Brandon Ray Williams pleaded guilty to one count of possession with the
intent to distribute marijuana and aiding and abetting and one count of
possession of a firearm in furtherance of a drug-trafficking crime and aiding
and abetting. He was sentenced to consecutive sentences of 92 months of
imprisonment for the drug count and 60 months of imprisonment for the
firearm count, and a four-year term of supervised release. On appeal, he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41232

argues that, because his indictment failed to allege a quantity of marijuana,
under 21 U.S.C. § 841(b)(1)(D), his statutory maximum sentence for his drug
count was 60 months of imprisonment. Accordingly, he contends that his 92-
month sentence on the drug count exceeded the statutory maximum.
      Because Williams did not raise this issue in the district court, our review
is for plain error. See United States v. Cotton, 535 U.S. 625, 631 (2002); United
States v. Longoria, 298 F.3d 367, 373 (5th Cir. 2002) (en banc). Under plain
error review, Williams must establish (1) an error; (2) that is plain; and (3) that
affects his substantial rights. See Cotton, 535 U.S. at 631. If he satisfies those
three requirements, we will exercise our discretion to correct the error only if
it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted, brackets in
original).
      Williams admitted that he possessed one pound of marijuana and sold at
least 100 kilograms of marijuana in his signed factual resume, and he affirmed
under oath at his rearraignment that his statements in his factual resume
were true. See United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001)
(holding that admissions of fact in open court carry “‘a strong presumption of
verity’” (citation omitted)).   His presentence report (PSR) used this drug
quantity to calculate his base offense level. Furthermore, the PSR stated that
law enforcement officers seized from Williams’s home four “large bags that
contained marijuana,” “[s]ix small bags [of marijuana] that had been packaged
for distribution,” and other evidence of drug trafficking activity. Williams did
not object to these statements in the PSR, and the district court adopted the
PSR without change. See United States v. Franklin, 148 148 F.3d 451 460 (5th
Cir. 1998) (holding that PSR is presumptively reliable in calculating amount




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                                No. 17-41232

of drugs and district court may rely on PSR in the absence of convincing
rebuttal evidence demonstrating error).
      Based on the foregoing, we decline to exercise our discretion to correct
any error made by the district court in sentencing Williams above the statutory
maximum sentence allowable under § 841(b)(1)(D).          See § 841(b)(1)(C);
Longoria, 298 F.3d at 372-74.
      AFFIRMED.




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