     Case: 16-10879        Document: 00514101137          Page: 1     Date Filed: 08/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                        No. 16-10879
                                                                                      Fifth Circuit

                                                                                     FILED
                                                                               August 3, 2017

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
                                                    Plaintiff–Appellee
v.

SHANDA RENEE HAWKINS,

                                                    Defendant–Appellant




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


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ,* District
Judge.
XAVIER RODRIGUEZ, District Judge:
      Appellant Shanda Renee Hawkins pled guilty to conspiracy with intent
to distribute a controlled substance, and received a four-point organizer or
leader enhancement and a two-point criminal livelihood enhancement, among
others. She challenges these two enhancements on appeal, along with the
substantive reasonableness of her sentence. For the following reasons, the
judgment below is AFFIRMED.




      *   District Judge of the Western District of Texas, sitting by designation.
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                                   No. 16-10879
                                  BACKGROUND
       Hawkins pled guilty to conspiracy with intent to distribute a controlled
substance (methamphetamine) in violation of 21 U.S.C. §§ 846 and 841(a)(1),
(b)(1)(B). The probation office prepared a presentence report (PSR), indicating
that Hawkins was accountable for 770,061.9 kilograms of marihuana
equivalent, which resulted in a base offense level of 38. Through a number of
enhancements and reductions, the probation office assessed a total offense
level of 49, which was reduced to 43, the maximum Guideline offense level.
For    present   purposes,   Hawkins     received    two     relevant   sentencing
enhancements. First, she received a four-level enhancement for being an
organizer or leader of the conspiracy. See U.S.S.G. § 3B1.1. Second, she
received a two-level enhancement for committing the offense as part of a
pattern of criminal conduct engaged in as a livelihood. See U.S.S.G. §
2D1.1(b)(15)(E). Given her total offense level and Criminal History Category
II, the Guidelines recommended life imprisonment, which was reduced to 480
months to reflect the statutorily authorized maximum sentence.
       Hawkins    objected   to   the   PSR,   challenging    the   two    relevant
enhancements. Hawkins argued that she was not an organizer or leader of
the conspiracy, as her involvement in it was based mostly on her romantic
involvement with several co-conspirators. Hawkins also argued that there
was insufficient evidence to show that she engaged in the offense as part of a
pattern of criminal conduct engaged in as a livelihood.
       The district court overruled the objections, adopted the PSR’s findings
of fact (subject to certain changes in an Addendum), and granted the
Government’s motion for a downward departure. The district court sentenced
Hawkins to 240 months of imprisonment to be followed by 4 years of
supervised release. Hawkins objected to the reasonableness of her sentence
under 18 U.S.C. § 3553(a) and filed a timely notice of appeal.
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                                   No. 16-10879
                                  DISCUSSION
          This Court has jurisdiction pursuant to 18 U.S.C. § 3742(a) as a
 defendant’s appeal of a final sentence. On this appeal, Hawkins challenges
 the district court’s application of two sentencing enhancements, along with
 the substantive reasonableness of her sentence.
I.     Challenges to the Application of Sentencing Enhancements
          a. Standard of Review
          Where, as here, an argument is preserved in the district court, this
 Court reviews “the application of the Guidelines de novo and the district
 court’s factual findings—along with the reasonable inferences drawn from
 those facts—for clear error.” United States v. Gomez–Valle, 828 F.3d 324, 327
 (5th Cir. 2016) (internal quotations omitted). A district court’s factual
 findings are not clearly erroneous so long as they are plausible in light of the
 record read as a whole. United States v. Alaniz, 726 F.3d 586, 622 (5th Cir.
 2013).
          When making factual findings at the sentencing stage, a district court
 may consider any information that “bears sufficient indicia of reliability to
 support its probable accuracy.” United States v. Zuniga, 720 F.3d 587, 590–91
 (5th Cir. 2013) (internal quotations omitted). “[A] [PSR] generally bears
 sufficient indicia of reliability to be considered as evidence by the sentencing
 judge in making factual determinations required by the sentencing
 guidelines.” United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)
 (internal quotations omitted). As a result, a district court may adopt facts
 contained in a PSR without further inquiry, assuming those facts have an
 adequate evidentiary basis that itself is sufficiently reliable and the
 defendant does not present evidence to the contrary. United States v. Harris,
     702 F.3d 226, 230 (5th Cir. 2012). Where a defendant wishes to challenge
     sufficiently reliable facts contained in a PSR, the defendant carries the
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                                No. 16-10879
burden of presenting rebuttal evidence showing that those facts are
materially untrue, inaccurate, or unreliable. Id. Objections, unsupported by
fact, generally do not carry this burden. Id.; see also United States v.
Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because no testimony or other
evidence was submitted to rebut the information in the PSR, the district
court was free to adopt the PSR’s findings without further inquiry or
explanation.”).
      b. The district court did not err in applying the organizer or
         leader enhancement.
      The district court’s application of the organizer or leader enhancement
is affirmed. The Sentencing Guidelines provide that “[i]f the defendant was
an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase [the offense level] by 4
levels.” U.S.S.G. § 3B1.1 (emphasis omitted). When determining whether this
enhancement applies, a sentencing court should consider a number of factors,
such as the exercise of decision-making authority, the recruitment of
accomplices, the claimed right to a larger share of “the fruits of the crime,”
and the degree of control and authority exercised over others. U.S.S.G. §
3B1.1, Application Note 4.
      Hawkins does not dispute the size of the conspiracy, but argues that
her involvement in it was based mostly on her romantic relationships with its
“key players.” She argues that she accompanied them and followed their
orders without having decision-making authority or an entitlement to a
higher share of the conspiracy’s proceeds.
      The district court adopted the PSR, which, aside from an objection,
Hawkins did not contradict or impeach. The PSR states that Hawkins
originally became involved in the conspiracy when she became romantically
involved with co-conspirator RV Kerr. Yet Hawkins’ role in the conspiracy did
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                                  No. 16-10879
not depend upon Kerr. Before Kerr was arrested, the PSR states that
Hawkins maintained her own client base, including one client who purchased
over 1,800 grams of methamphetamine from Hawkins in less than a year.
And after Kerr’s arrest, Hawkins continued selling methamphetamine on her
own and in conjunction with other co-conspirators. Some of Hawkins’ sales
included methamphetamine packaged by Hawkins herself and sold from her
own home.
      Aside from simply selling, Hawkins was responsible for collecting
payments, directing runners to deliver methamphetamine on behalf of herself
and other co-conspirators, and recruiting drivers (who would transport her
and her co-conspirators to drug transactions) and enforcers (who would
collect drug debts). At Hawkins’ direction, drivers acted as middle men
between Hawkins and customers, delivering drugs and picking up cash. At
least once, an enforcer acting on Hawkins’ instructions took a supplier’s
vehicle as collateral for a drug debt.
      As noted, Hawkins did not offer testimony or evidence to contradict the
PSR, which otherwise bears a sufficient indicia of reliability. As a result, the
district court was entitled to rely on the facts set forth in the PSR, and in
doing so, made the plausible finding that Hawkins was a leader or organizer
of the conspiracy. Hawkins’ role in the conspiracy went far beyond that of the
key players’ girlfriend. She actively sold drugs—on her own and in
conjunction with co-conspirators. She also directed and recruited a number of
subordinates, who executed drug deals, picked up payments, acted as
enforcers, and transported drugs belonging to her and her co-conspirators. On
similar facts, this Court has previously affirmed a district court’s application
of the organizer or leader enhancement of § 3B1.1, and does so here as well.
United States v. Cantu-Ramirez, 669 F.3d 619, 629–30 (5th Cir. 2012).


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                                     No. 16-10879
       In sum, the district court’s factual determination that Hawkins
qualified as an organizer or leader under § 3B1.1 was not clearly erroneous
because it was plausible in light of the record.
      c. The district court did not err in applying the criminal
          livelihood enhancement.
      The district court’s application of the criminal livelihood enhancement
is also affirmed. The Sentencing Guidelines provide for a two-level
enhancement where “the defendant committed the offense as part of a
pattern of criminal conduct engaged in as a livelihood.” U.S.S.G. §
2D1.1(b)(15)(E). 1 The phrase “engaged in as a livelihood,” which is defined in
U.S.S.G. § 4B1.3, means that:
      (A) the defendant derived income from the pattern of criminal
      conduct that in any twelve-month period exceeded 2,000 times
      the then existing hourly minimum wage under federal law; and
      (B) the totality of circumstances shows that such criminal
      conduct was the defendant’s primary occupation in that twelve-
      month period (e.g., the defendant engaged in criminal conduct
      rather than regular, legitimate employment; or the defendant’s
      legitimate employment was merely a front for the defendant’s
      criminal conduct).

U.S.S.G. § 4B1.3, Application Note 2; U.S.S.G. § 2D1.1, Application Note 20.
Under the then-existing federal hourly minimum wage of $7.25, this
enhancement would apply to Hawkins if the income she derived from the
conspiracy totaled more than $14,500 in any twelve-month period.
      As both parties correctly point out, this Court has seldom addressed the
criminal livelihood enhancement. In the most recent case addressing it, this
Court held that a district court did not commit clear error by applying the
enhancement to a defendant who pled guilty to possessing stolen mail based

      1   This enhancement only applies if the defendant also received an Aggravating Role
adjustment under U.S.S.G. § 3B1.1. Here, the organizer or leader enhancement, which Hawkins
properly received for the reasons discussed above, is such an adjustment.
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                                  No. 16-10879
on the value of stolen checks and other amounts received, even though he did
not successfully cash all of the stolen checks. United States v. Quertermous,
946 F.2d 375, 377 (5th Cir. 1991). In so holding, the Court reasoned that
“district courts enjoy wide latitude in implementing the Sentencing
Guidelines, particularly regarding findings of fact.” Id. Several months prior
to Quertermous, this Court reached a similar conclusion with respect to a
defendant who pled guilty to possessing a credit card stolen from the mail.
United States v. Cryer, 925 F.2d 828, 830 (5th Cir. 1991). In calculating the
total amount of income attributable to the defendant as a result of his
criminal livelihood, the district court counted $2,071.91 in credit card charges
along with the $15,000 market value of a stolen car. Id. at 829. Again
focusing on “the wide discretion district courts are afforded in implementing
the sentencing guidelines, particularly the deference that they enjoy with
respect to their findings of fact,” this Court affirmed the district court’s
inclusion of the car’s value in reaching the criminal livelihood threshold. Id.
at 830.
       Keeping in mind this wide discretion afforded to district courts, we now
turn to Hawkins’ arguments and the PSR. Hawkins argues that there is “no
direct evidence” that she herself earned at least $14,500 over a one-year
period due to the drug conspiracy. She argues that the PSR and its
Addendum are based on “mere speculation and blanket assumptions” about
the possible drug quantities and dollar amounts in which Hawkins dealt. She
points out that Kerr’s father received the majority of the drug proceeds and
that her boyfriends supported her financially while she was involved in the
conspiracy.
       The PSR details Hawkins’ many transactions with numerous suppliers.
One     supplier   alone   gave   Hawkins    and    Kerr   195    kilograms     of
methamphetamine (valued at over $4 million) over a two-and-a-half year
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                                      No. 16-10879
  period. Hawkins herself admitted in a post-arrest interview that she and
  Kerr dealt with “thousands and thousands of dollars each day,” although
  Kerr’s father received the majority of the proceeds. Hawkins had no other
  gainful employment during her four-year involvement in the conspiracy.
            On the basis of these facts—again, unimpeached or contradicted by
  Hawkins—the district court did not clearly err by inferring that Hawkins
  derived $14,500 in income from the conspiracy during any of the four years in
  which she was involved in it. Nor did the district court err in finding that
  criminal conduct was her primary occupation. Hawkins did not hold a job
  outside of the conspiracy. Instead, she dealt in staggering amounts of
  methamphetamine, the value of which far exceeds the $14,500 annual
  threshold. Even if she kept only a miniscule fraction of the drug proceeds that
  she handled, she still would satisfy this threshold. And to the extent that
  Hawkins received financial support from her boyfriends, she admits that her
  boyfriends were her co-conspirators, whose incomes were derived from the
  drug conspiracy.
            In short, the district court drew the reasonable inference that Hawkins
  derived at least $14,500 in any one-year period from her involvement in the
  conspiracy. As a result, the district court’s factual determination that
  Hawkins qualified for the criminal livelihood enhancement under §
  2D1.1(b)(15)(E) was not clearly erroneous and was instead plausible in light
  of the record.
II.      Challenge to the Substantive Reasonableness of Hawkins’ Below-
         Guideline Sentence
            a. Standard of Review
            After calculating the Guideline’s recommended sentencing range, a
      sentencing judge should consider the factors set forth in 18 U.S.C. § 3553(a)
      to determine the particular sentence to impose. In reviewing a district court’s
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                                 No. 16-10879
application of the § 3553(a) factors, appellate courts assess a sentence’s
substantive reasonableness on an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 50–51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In
conducting this review, this Court is highly deferential to the district court,
“as the sentencing judge is in a superior position to find facts and judge their
import under § 3553(a) with respect to a particular defendant.” United States
v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citing Gall, 552
U.S. at 50–51).
      This Court presumes that sentences within or below the calculated
guideline range are reasonable. United States v. Simpson, 796 F.3d 548, 557
(5th Cir. 2015), cert. denied, 136 S. Ct. 920, 193 L. Ed. 2d 807 (2016). To rebut
the presumptive reasonableness of such a sentence, Hawkins must
demonstrate that the sentence: “‘(1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant
or improper factor, or (3) represents a clear error of judgment in balancing
the sentencing factors.’” Id. (quoting United States v. Warren, 720 F.3d 321,
332 (5th Cir. 2013)).
      b. Hawkins’ sentence is not substantively unreasonable.
      The   Guidelines     recommended     a    sentence   of   480   months    of
imprisonment for Hawkins. The district court sentenced Hawkins to 240
months, granting the Government’s motion for a downward departure. In so
doing, the district court explained:
            A downward departure to 240 months is necessary to
      comply with the purposes set forth in paragraph 2 of Section
      3553(a), that is, to reflect the seriousness of and to provide just
      punishment for the offense, promote respect for the law, afford
      adequate deterrence to criminal conduct, and protect the public
      from further crimes of the defendant.
            This sentence is a departure from the guideline range to
      avoid unwarranted disparities among the defendants, and grant

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                                 No. 16-10879
      relief for the defendant’s cooperation with the government, which
      prompted a motion under [§] 5K1.1 from the guidelines range.

In support of this reasoning, the district court knew of Hawkins’ background
and heard argument from her counsel and the Government regarding
sentencing disparities between her and her co-conspirators.
      On appeal, Hawkins reasserts her position that she was more of a
complicit follower than an organizer or leader of the conspiracy, concluding
that it is substantively unreasonable for her to be “on equal sentence footing
with the very worst of them.” Hawkins also points to her young age, lack of
criminal history, and relatively low likelihood of recidivism to argue that her
sentence is unreasonable.
      Hawkins’ reliance on these facts does not render her sentence
substantively unreasonable but rather reflects her mere disagreement with
it. See United States v. Rodriguez, 660 F.3d 231, 235 (5th Cir. 2011) (“A
defendant’s disagreement with the propriety of the sentence imposed does not
suffice to rebut the presumption of reasonableness that attaches to a within-
guidelines sentence.”). Given the arguments of counsel at the sentencing
hearing, along with the facts presented to the district court in the PSR, there
is no evidence that the district court gave undue weight to the factors, failed
to consider relevant factors, or committed clear error in balancing the factors.
Accordingly, the district court did not abuse its discretion by imposing a 240-
month sentence.
                               CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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