     Case: 14-31434      Document: 00513669407         Page: 1    Date Filed: 09/08/2016




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

                                    No. 14-31434
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                          September 8, 2016
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

DANIEL PAUL FRANCIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:12-CR-146-9


Before JONES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Daniel Paul Francis appeals the sentence imposed after he pleaded
guilty to conspiring to introduce a misbranded synthetic cannabinoid, AM-
2201, into interstate commerce. See 18 U.S.C. § 371; 21 U.S.C. §§ 331, 333,
352. Francis contends that the court erred by finding AM-2201 to be most
closely related to Tetrahydrocannabinol, Synthetic (THC), and by applying a
1:167 ratio of AM-2201 to marijuana to calculate the relevant drug quantity.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31434

He also argues that the district court improperly limited the degrees of his
U.S.S.G. § 5K1.1 sentence reduction by considering a factor unrelated to his
assistance.
      In a related case arising from the same criminal scheme, we recently
affirmed the THC is the most closely related drug to AM-2201 and that the
court did not err by applying the 1:167 ratio. Francis’s drug-quantity claims
lack merit. See United States v. Malone, ___F.3d___, 2016 WL 3627319, *4-*5
(5th Cir. July 6, 2016).
      As to Francis’s claim that the district court erred by considering his
minor role as a factor affecting his § 5K1.1 reduction, we review only for plain
error because Francis did not alert the court to the possible error in order to
give the court a chance to amend the reduction or to clarify its reasons. See
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). To show plain error,
Francis must show a forfeited error that was “clear or obvious, rather than
subject to reasonable dispute” and that the error affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does, this court
has the discretion to correct the error if it seriously affected the integrity,
fairness, or public reputation of the proceedings. Id. To show that an error
affected his substantial rights pertaining to his sentence, Francis must show
“a reasonable probability that, but for the district court’s error, [he] would have
received a lower sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir.
2010).
      “District courts have almost complete discretion to determine the extent
of a departure under § 5K1.1.” United States v. Hashimoto, 193 F.3d 840, 843
(5th Cir. 1999). Nonetheless, “the extent of a § 5K1.1 or [18 U.S.C.] § 3553(e)
departure must be based solely on assistance-related concerns.” United States
v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). The court told Francis that the



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                                No. 14-31434

30% reduction under § 5K1.1 was “based not only on [his] cooperation, but on
[his] relative culpability with the other defendants and the other factors.” If
we assume without deciding that the court committed a clear and obvious error
by possibly conflating the § 3553(a) factors with assistance factors, we
nonetheless conclude that Francis has not shown that any error affected his
substantial rights.    The district court’s mention of Francis’s “relative
culpability” in the context of the reduction is ambiguous and does not mandate
an inference that the court intended Francis’s role reduction to limit further
reduction.   Thus, the record does not establish that, but for the alleged
consideration of an improper factor, Francis would have received a lesser
sentence. See Davis, 602 F.3d at 647; cf. Malone, 2016 WL 3627319 at *6
(finding no plain error where the district court merely “muddled the steps” in
formulating the sentence).
      The judgment is AFFIRMED.




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