     Case: 19-10127      Document: 00515204285          Page: 1   Date Filed: 11/19/2019




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

                                    No. 19-10127
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      November 19, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

RONELLE LAMAR OUDEMS,

                                                 Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:18-CR-34-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
        Ronelle Lamar Oudems pleaded guilty to possession “with intent to
distribute 28 grams and more, but less than 280 grams, of cocaine base”
(crack). Relying mostly on information from seven confidential informants
(CIs)       about   Oudems’s    long   history     of   trafficking    in    cocaine           and
methamphetamine, the presentence report (PSR) calculated a “converted drug
weight” (CDW) of 117,404.64 kilograms for sentencing purposes. See U.S.S.G.


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10127

§ 2D1.1(c)(1) & comment. (n.8) (explaining drug weight conversion).          Over
Oudems’s objections about the relevant drug quantity, the district court
accepted the PSR’s calculations and sentenced Oudems to 210 months in
prison, at the bottom of the advisory guideline range.
      Oudems appeals and contends that the district court clearly erred by
considering the drug amounts reported by CI number 3 (CI-3) and CI number
7 (CI-7), which totaled more than 105,000 kilograms of CDW. He asserts that
the assertions of CI-3 and CI-7 were “outlandish” and implausible and thus
lacked sufficient indicia of reliability under U.S.S.G. § 6A1.3(a) (p.s.).
      A district court’s finding of drug quantity relevant to sentencing is a
factual finding reviewed for clear error. United States v. Rogers, 1 F.3d 341,
342 (5th Cir. 1993). “Under the clearly erroneous standard, if the district
court’s account of the evidence is plausible in light of the record viewed in its
entirety the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. (internal quotation marks, brackets, and citation omitted).
      Where the amount of seized drugs “does not reflect the scale of the
offense, the court shall approximate the quantity of the controlled substance.”
§ 2D1.1, comment. (n.5); see United States v. Betancourt, 422 F.3d 240, 246 (5th
Cir. 2005). Ultimately, the district court’s estimate of drug quantity need only
be supported by a preponderance of relevant and reasonably reliable evidence.
See id. at 246-247. A “district court has significant discretion in evaluating
reliability.” United States v. Young, 981 F.2d 180, 185 (5th Cir. 1993). The
requirement of reasonable reliability is not onerous. United States v. Malone,
828 F.3d 331, 337 (5th Cir. 2016). “Even uncorroborated hearsay,” for example,
“may be sufficiently reliable,” and “the district court may rely on the
information presented in the presentence investigation report so long as the



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                                  No. 19-10127

information has ‘some minimum indicium of reliability.” United States v.
Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (internal quotation marks and citation
omitted).   Statements derived from police investigations generally bear
sufficient indicia of reliability. See United States v. Valdez, 453 F.3d 252, 267
(5th Cir. 2006); United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991). “The
defendant bears the burden of demonstrating that information the district
court relied on in sentencing is materially untrue.” Id. (internal quotation
marks and citation omitted).
      Oudems first contends that there was no good cause for not disclosing
the CIs’ identities. Generally, an out-of-court declaration “by an unidentified
informant may be considered where there is good cause for the non-disclosure
of the informant's identity and there is sufficient corroboration by other
means.” § 6A1.3, comment.; see United States v. Young, 981 F.2d 180 (5th Cir.
1993)). But Oudems’s disclosure claim is reviewed only for plain error because
he never asked for the disclosure of the CIs’ identities in the district court. See
Young, 981 F.2d at 187. To show plain error, Oudems must first show a
forfeited error that is clear or obvious beyond “reasonable dispute” and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). He fails to make this initial showing.
      Disclosure was not required here because the evidence showed that the
CIs were known to Oudems, who personally met and dealt with them. See
United States v. Guerrero, No. 93-3450, 1994 WL 57697, at *1 (5th Cir. Feb. 18,
1994) (unpublished). Because Guerrero was issued before January 1, 1996, it
is binding precedent. See 5TH CIR. R. 47.5.3. It is closely on point and shows
that any legal error in not requiring the Government to sua sponte disclose the
CIs’ identities was not “clear or obvious, rather than subject to reasonable
dispute.” Puckett, 556 U.S. at 135.



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                                No. 19-10127

      In addition, the implicit factual finding that Oudems knew the CIs
cannot be a plain error because that discrete factual question would have been
“capable of resolution by the district court” if Oudems had raised the issue.
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Regardless, undisputed
testimony showed that CI-3 lived for a while at Oudems’s uncle’s house and
that Oudems knew CI-7 well enough to drive a pickup truck that was
registered to CI-7.
      The remaining issue is whether the CIs’ information “was grounded in
some indicia of reliability.” Rogers, 1 F.3d at 344. Oudems asserts that the
accusations of CI-3 and CI-7 are “rebutted” by other evidence. But his actual
argument is merely a conclusional assertion that there was not enough
corroboration. The mere lack of additional or extra evidence does not refute
the evidence that was available, and Oudems has failed to carry his burden of
showing that the available evidence was “materially untrue.” United States v.
Gaytan, 74 F.3d 545, 558 (5th Cir. 1996)
      Oudems asserts that the CIs’ assertions of regular drug dealing over a
lengthy time frame, and with “clockwork regularity . . . strain credulity.” But
Oudems does not seek relief based on mere “exaggeration” by CI-3 and CI-7.
Instead he seeks to have their evidence completely discounted so that both his
relevant drug quantity and his criminal history category will be reduced.
Oudems shows no entitlement to the relief he seeks.
      Finally, Oudems argues that the Sixth Amendment requires that he be
allowed to confront and cross-examine the CIs whose statements affected his
sentence. He acknowledges that his claim is foreclosed by United States v.
Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
      The judgment is AFFIRMED.




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