     Case: 18-10099   Document: 00514902264     Page: 1   Date Filed: 04/04/2019




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


                                 No. 18-10099
                                                                         FILED
                                                                      April 4, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff – Appellee,

v.

JENNEY DINH, also known as Jenney Thi Dinh,

             Defendant – Appellant.



                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Jenney Dinh pleaded guilty to distributing a large volume of pills
containing Fentanyl analogues. Two crime laboratories tested samples of the
pills and reported that every pill tested contained the analogues.                    At
sentencing, the district court used the total weight of all the pills as the
attributable drug quantity. On appeal, Dinh objects to the district court’s use
of that drug quantity when calculating her sentence. Because the district court
did not err in using that drug quantity, we AFFIRM.
                                      I.
      Dinh pleaded guilty to being in the illegal opioid business and she is
serving a 151-month sentence in prison. As admitted in a factual resume
signed pursuant to her plea agreement, she was caught possessing and selling
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                                     No. 18-10099
large quantities of pills on four separate occasions. The pills were advertised
as Hydrocodone and Oxycodone; however, lab reports from the first three
batches detected that they contained Fentanyl analogues instead. 1
      In the first seizure, a bag containing 991 pills was found during an
inventory of Dinh’s car after an arrest. Those pills were sent to a Texas
Department of Public Safety crime lab for analysis. The lab tested a sample of
29 pills from that batch and detected a Fentanyl analogue in every tested pill.
The lab report notes that the bag contained “991 white oblong tablets,” and
states that “[t]he statistical sampling plan used indicates a 95% confidence
that at least 90% of the items will have the reported results.” In the second
seizure, Dinh sold an undercover DEA agent 1,001 pills. Those pills were sent
to a DEA lab for analysis. The lab tested 28 pills from that batch and detected
a Fentanyl analogue in every tested pill. As with the Texas DPS lab report,
the DEA lab report does not indicate any way in which the pills were
distinguishable from one another and states that the sampling plan represents
a 95% level of confidence that at least 90% of the pills contain the analogue. In
the third seizure, Dinh sold an undercover DEA agent 506 pills. Those pills
were again sent to a DEA lab for analysis. The lab again tested 28 pills from
that batch and again detected a Fentanyl analogue in every tested pill. The
lab report again does not indicate any way in which the pills were
distinguishable from one another and again states a 95% level of confidence
that at least 90% of the pills contain the analogue.
      In total, 2,498 pills from three separate batches, with a net weight of
838.9 grams, were sent to the labs. The labs tested 85 of those pills (28-29 from
each batch) and detected Fentanyl analogues in every single pill that was



      1  The pills from the fourth batch were not sent to a lab for analysis nor were they
factored into her relevant drug quantity at sentencing.
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                                  No. 18-10099
tested. The lab reports then stated that based on those samplings there was a
95% level of confidence that at least 90% of all the pills contained Fentanyl
analogues. None of the lab reports go into depth on the chemical equations
underlying their results nor the mathematical models underlying their ranges
of statistical certainty.
      Based on those lab reports, the Presentence Report (PSR) concluded that
the relevant drug quantity was the net weight of all the pills submitted for
testing—838.9 grams. Dinh objected to the use of that quantity on the grounds
that: (1) it violated Due Process to test only a small sample of the pills; (2) it
violated Due Process not to ascertain the exact composition of each pill; and (3)
it violated the Confrontation Clause not to be able to cross-examine the lab
technicians. The district court overruled those objections, and sentenced Dinh
to 151 months’ imprisonment (the bottom end of a Guidelines range of 151–188
months). Dinh filed a timely notice of appeal, and we have jurisdiction under
18 U.S.C. § 3742(a).
                                       II.
      “We apply the clearly erroneous standard of review to the district court’s
factual determination regarding the quantity of drugs used to establish the
base offense level.” United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013)
(citing United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997)).
“Ultimately, the district court need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently reliable
evidence.” Id. at 618–19 (citing United States v. Betancourt, 422 F.3d 240, 247
(5th Cir. 2005)). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record read as a whole.” United States v. Sanders, 942
F.2d 894, 897 (5th Cir. 1991).
      “We review the district court’s interpretation and application of the
Sentencing Guidelines de novo[.]” United States v. Rodriguez-Lopez, 756 F.3d
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422, 434 (5th Cir. 2014) (citing United States v. Miller, 607 F.3d 144, 147 (5th
Cir. 2010)). “[W]hen faced with a preserved constitutional challenge to the
Guidelines’ application, our review is de novo.” United States v. Preciado-
Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).
                                      III.
      On appeal, Dinh argues that the district court’s reliance on the PSR’s
drug quantity was legal error for three reasons: (1) it reflected the mixture
weight of the pills rather than just the controlled substance weight; (2) there
was no opportunity to confront the lab technicians; and (3) the PSR did not
provide an adequate evidentiary basis for extrapolating the drug quantity to
include all of the untested pills. We address each argument in turn.
                                      A.
      Dinh repeats the argument she made before the district court that using
mixture weight to calculate the overall drug quantity, rather than the isolated
weight of the Fentanyl analogue components, is a Due Process violation. She
asserts that the Sentencing Guideline’s direction to calculate Fentanyl
analogue quantities in that manner is unconstitutional.       She argues it is
absurd and disproportional to sentence two offenders with identical amounts
of Fentanyl analogues to dramatically different sentences just because one
offender mixes her Fentanyl analogue with sugar (or, in this case,
acetaminophen) and the other leaves it pure. She points out that if she had
been selling Hydrocodone and Oxycodone—like she allegedly believed—the
quantity would be based on the actual controlled substance weight rather than
the mixture weight.




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                                        No. 18-10099
       However, Dinh’s argument is unavailing. Under the 2016 Sentencing
Guidelines, 2 the default rule for calculating the weight of a controlled
substance is its mixture weight.              U.S.S.G. § 2D1.1(c), Note A (“Unless
otherwise specified, the weight of a controlled substance set forth in the table
refers to the entire weight of any mixture or substance containing a detectable
amount of the controlled substance.”).                    Fentanyl analogues, unlike
Hydrocodone and Oxycodone, 3 are not otherwise specified, so they are subject
to the mixture rule. Moreover, the Supreme Court has already held that
mixture weight calculations do not violate Due Process when, as here, the drug
cannot be easily separated from the mixture and is intended for sale and
consumption         in    the    mixture—rejecting        the    same      absurdity      and
disproportionality arguments that Dinh makes on this appeal. Chapman v.
United States, 500 U.S. 453 (1991). 4
                                              B.
       Next, Dinh argues that the Sixth Amendment’s Confrontation Clause
right, as enunciated by the Supreme Court in Crawford v. Washington, 541
U.S. 36 (2004), should be extended to the sentencing phase. Despite whatever
intuitive strength such an argument may have, Dinh acknowledges that we
already have precedent declining to do so. See, e.g., United States v. Beydoun,
469 F.3d 102, 108 (5th Cir. 2006). Our precedent on this point is in line with



       2 Dinh was sentenced under the 2016 Guidelines, so they are referred to throughout
this opinion. However, the parties do not brief, nor has the court identified, any way relevant
to this case in which newer Guidelines materially differ from the 2016 version.

       3   See U.S.S.G. § 2D1.1(c), Note B.

       4 We are troubled by the fact that Dinh’s counsel does not attempt to distinguish
Chapman, nor even acknowledge it as adverse authority which this court should be aware of
when considering this argument. Counsel is reminded of his duties, as an officer of the court
and member of the legal profession, to exercise due diligence and candor with the court when
briefing his clients’ arguments.
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                                      No. 18-10099
other circuits. See, e.g., United States v. Katzopoulos, 437 F.3d 569, 576 (6th
Cir. 2006); United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006);
United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v.
Martinez, 413 F.3d 239, 243–44 (2d Cir. 2005); United States v. Roche, 415 F.3d
614, 618 (7th Cir. 2005), abrogated in part on other grounds by Kimbrough v.
United States, 552 U.S. 85, 128 (2007); United States v. Brown, 430 F.3d 942,
944 (8th Cir. 2005); United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.
2005).     Dinh attempts to distinguish her argument from those that have
already been rejected by stating that she is not asking for a general right of
confrontation when any testimonial evidence is introduced at sentencing, but
is instead asking only for a narrow exception when “scientific and technical
evidence” is introduced. 5
       But Dinh’s argument for an exception in cases dealing with “scientific
and technical information” also fails. Dinh does not cite any authority to
support her argument that Crawford should now be read to recognize a
Confrontation Clause right at sentencing for certain types of evidence.
Moreover, it has long been established by the Supreme Court that defendants
do not have a constitutional right of confrontation or cross-examination at the
sentencing phase. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 584 (1959);
Williams v. New York, 337 U.S. 241, 246–51 (1949). As every circuit court to
address the question has held, Crawford did not address the rights of a
defendant at sentencing, so the Supreme Court’s precedent in those earlier
cases remains binding on this court. See Agostini v. Felton, 521 U.S. 203, 237
(1997) (“[I]f a precedent of this Court has direct application in a case, yet



       5 Dinh does not argue any other basis for her asserted right to cross-examine the lab
technicians at sentencing—such as Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1993). Her argument is limited strictly to the Sixth
Amendment’s Confrontation Clause right.
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                                  No. 18-10099
appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.” (citation omitted)). Thus, if
the Sixth Amendment’s Confrontation Clause right were to be recognized as
extending to the sentencing phase for all cases, or even some subset of cases
involving specified types of evidence, that decision would have to come from
the Supreme Court.
                                       C.
      Last, Dinh argues that the government needed to present more of an
evidentiary basis for how the labs calculated their statistical certainties before
the lab reports could constitute a sufficient basis for the PSR (and, by adoption,
the district court) to extrapolate the relevant drug quantity. She asserts that
her objection to the PSR (“[t]he burden of proving the accuracy and reliability
of these lab reports now rests with the Government”) and her objection at
sentencing (“[w]e don’t know why the chemist is 95 percent confident that this
mixture contains the fentanyl analog”) were sufficient to require that the
government explain how the lab reports calculated their levels of statistical
certainty.
      In support of her argument, Dinh points to our precedent holding that
district courts cannot rely on facts contained in the PSR that are not supported
by “an adequate evidentiary basis with sufficient indicia of reliability.” United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012); see also United States v.
Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993) (“Bald, conclusionary statements
do not acquire the patina of reliability by mere inclusion in the PSR.”).
      However, a district court may adopt the facts presented in a PSR
“without further inquiry if those facts have an adequate evidentiary basis with
sufficient indicia of reliability and the defendant does not present rebuttal
evidence.” Harris, 702 F.3d at 230 (emphasis added) (citing United States v.
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                                  No. 18-10099
Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)). Therefore, we must consider: (1)
whether the findings of the lab reports in this case provide an adequate
evidentiary basis with sufficient indicia of reliability for the PSR to conclude
that all of the pills contained Fentanyl analogues; and (2) if they do, whether
Dinh offered competent rebuttal evidence requiring the government to further
explain the calculation of those test results or how they could serve as the basis
for the extrapolated drug quantity.
      First, we address whether the lab reports in this case provide an
adequate evidentiary basis with sufficient indicia of reliability for the PSR to
conclude that all of the pills contained Fentanyl analogues. We hold that they
do. Contrary to Dinh’s argument, the PSR’s extrapolation was not a ‘[b]ald,
conclusionary statement[]” with “no support for [its] essential factual
determination[]” concerning the quantity of drugs involved. Elwood, 999 F.2d
at 817–18. Instead, the PSR based its conclusion on three lab reports that all
stated, with 95% confidence, that at least 90% of the seized pills contained
Fentanyl analogues. Those reports were based on random samplings wherein
100% of the pills actually tested were found to contain the analogues.
      We have held that district courts “may extrapolate the quantity [of
drugs] from any information that has sufficient indicia of reliability to support
its probable accuracy[,]” and “may consider estimates of the quantity of drugs
for sentencing purposes.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir.
2006) (citations omitted). In that vein, we have held that the results of a lab
report are presumptively reliable. See United States v. Koss, 812 F.3d 460, 469
(5th Cir. 2016). We have also held that sentencing courts are permitted to
extrapolate the nature and quantity of drugs involved in an offense based on
lab reports that tested only a sample of the overall quantity. See United States
v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012); United States v. Fitzgerald, 89
F.3d 218, 223 n.5 (5th Cir. 1996).
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                                  No. 18-10099
      In this case, two different labs tested samples from three separate
batches of pills.    From those samples, 100% of the pills that were tested
contained Fentanyl analogues.      That alone is adequate for establishing a
sufficiently reliable evidentiary basis for the extrapolated drug quantity here.
In other words, if all the court had before it was those data points, it would not
have been clearly erroneous for the district court to find, by a preponderance
of the evidence, that the relevant drug quantity included all of the pills. With
that said, the lab reports’ statistical certainty ranges do nothing to foreclose
(and actually bolster) the district court’s finding that 100% of the pills
contained Fentanyl analogues.
      Moreover, this is not a case where a slight adjustment to the attributable
quantity would have changed the base offense level. With an attributable
quantity of 838.9 grams of Fentanyl analogue, the base offense level under the
2016 Guidelines is 32, which spans from 300 to 1,000 grams. U.S.S.G. §
2D1.1(c)(4). As such, the district court’s finding is even less clearly erroneous,
as the base offense level would have been the same if only 35.8% of the
submitted pill weight contained Fentanyl analogues. Accord Rodriguez, 666
F.3d at 947 (noting that the absence of clear error in the district court’s
extrapolation of drug quantity was “especially true” given that the sentencing
guidelines recommended the same base offense level even if the extrapolated
drugs had a purity level that was roughly 17% lower than that found in the
tested samples).
      Simply put, the findings of a lab report are generally considered to have
sufficient indicia of reliability for consideration at sentencing without first
requiring the government to explain the chemical equations and compounds
underlying the results.     See, e.g., Koss, 812 F.3d at 469.        That same
presumption of reliability applies to the mathematical models used by the lab
to generate the report’s range of statistical certainty. As such, there was an
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                                  No. 18-10099
adequate evidentiary basis, with sufficient indicia of reliability, for the district
court to find that the drug quantity relevant for sentencing included all of the
pills—or at least enough of the pills to reach a base offense level of 32.
      Second, we address whether Dinh offered competent rebuttal evidence
requiring the government to further explain or defend the lab reports. We hold
that she did not.      To challenge the validity of the lab reports or the
extrapolation of total drug quantity, Dinh could have offered testimony or other
evidence that the batches of pills were internally heterogeneous, or that there
was some other reason why, under the facts of this case, extrapolation would
be inappropriate.     In addition, she could have offered expert testimony
questioning the scientific accuracy of lab tests for Fentanyl analogues and/or
the mathematical modeling behind the statistical certainty range.
      However, Dinh has offered no such evidence. She only objected to the
lab reports’ statistical certainty of 95% and demanded that the government do
more to prove the accuracy and reliability of the reports (though she does not
specify precisely what that “more” would be). But “[m]ere objections do not
suffice as competent rebuttal evidence.” Alaniz, 726 F.3d at 619 (citing United
States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998)). Accord Koss, 812 F.3d at
470 (rejecting a challenge to lab report findings because, inter alia, “[the
defendant] did not offer any evidence of flaws in the DPS lab’s practices; she
did not take the stand at sentencing to explain how she made the [drug
mixture] or to clarify the contents of [another drug mixture]; nor did she did
call any witnesses to explain the contents of either substance. Absent contrary
evidence, we hold that the DPS lab reports . . . were sufficient to support [the
sentencing determination] by a preponderance of the evidence[.]”).
      As such, there was an adequate evidentiary basis in the PSR for the
district court to conclude that the relevant drug quantity was the total number
of pills, and Dinh did not offer any credible evidence in rebuttal.
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                           No. 18-10099
                             *   *    *
  Dinh’s sentence is AFFIRMED.




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