     Case: 16-10272      Document: 00513850807         Page: 1    Date Filed: 01/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                    No. 16-10272
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          January 26, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

CALEB SMITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-214-2


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Caleb Smith appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute a controlled
substance.     Smith contends that the district court should have held him
accountable only for the amount of methamphetamine that was recovered from
his person (29.6 grams on February 26, 2015) and in his presence (119.5 grams




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10272     Document: 00513850807       Page: 2     Date Filed: 01/26/2017


                                   No. 16-10272

found in the vehicle he was driving on March 3, 2015), or such amounts that
were properly corroborated.
       This court generally reviews a district court’s finding regarding the
applicable drug quantity for clear error and will affirm the finding as long as
it is plausible in light of the record as a whole. See United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005). “[T]he district court need only determine its
factual findings at sentencing by a preponderance of the relevant and
sufficiently reliable evidence.” United States v. Hinojosa, 749 F.3d 407, 415
(5th Cir. 2014) (internal quotation marks and citation omitted).
       The district court had to find that Smith was responsible for at least 150
grams of “methamphetamine actual” in order to find that his base offense level
was 32. See U.S.S.G. § 2D1.1(c)(4) (150 to 500 grams of “methamphetamine
actual”). The district court based its factual findings concerning the drug
quantity on the information in the Presentence Report (PSR) obtained from
reports by the Weatherford Police Department and Drug Enforcement
Administration Officers Kevin Brown and George Courtney.                   The PSR
determined that Smith should be held accountable for 373.6 grams of
“methamphetamine actual,” including (1) 103 grams of “methamphetamine
actual” seized from the vehicle Smith was driving on March 3, 2015, 1 (2) 7
grams of methamphetamine that Smith supplied to John Galbreaith prior to
February 26, 2015, and (3) 280 grams of methamphetamine, which was an
estimate based upon admissions by Smith’s codefendant, Lezli Owens, that she
had previously purchased up to 10 ounces (280 grams) of methamphetamine a
day from her supplier and that Smith had been present on several occasions
when       she   obtained   the   methamphetamine;           the   287    grams     of



       1The 119 grams of methamphetamine seized from the vehicle was determined to be
103 grams of “methamphetamine actual.”


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                                 No. 16-10272

methamphetamine was then reduced to 270.6 grams of “methamphetamine
actual” using an average purity rate of 94.3 percent.
      The district court did not clearly err in determining that Smith was
responsible for at least 150 grams of “methamphetamine actual.” Smith did
not present any evidence at the sentencing hearing to demonstrate that the
drug quantity was “materially untrue, inaccurate or unreliable.” See United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). In the absence of such
rebuttal evidence, the district court did not err in adopting the facts in a PSR
without further inquiry because the facts were based on police reports which
had “an adequate evidentiary basis with sufficient indicia of reliability.” See
United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Because the
drug quantity is plausible in light of the record as a whole, the district court
did not clearly err in finding that Smith was responsible for at least 150 grams
of “methamphetamine actual,” resulting in a base offense level of 32. See
§ 2D1.1(c)(4). See Betancourt, 422 F.3d 240 at 246.
      In addition, Smith contends that the district court erred in giving
considerable weight to his prior arrest for transporting chemicals with intent
to manufacture a controlled substance. Because Smith did not raise this issue
in the district court, review is limited to plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). At sentencing, the district court focused
primarily on Smith’s extensive criminal history. The district court expressly
stated that it was considering Smith’s prior arrest for burglary of a building
but no other arrests for unadjudicated offenses. Therefore, Smith has not
shown that the district court committed any error, plain or otherwise. See
United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010).
      AFFIRMED.




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