     Case: 16-11421      Document: 00514108875         Page: 1    Date Filed: 08/09/2017




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

                                    No. 16-11421                                FILED
                                  Summary Calendar                         August 9, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TERRY RYAN NICHOLS, also known as “Buster”,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-114-3


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Terry Ryan Nichols appeals the 240-month guideline sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute methamphetamine.           He argues that the district court erred by
(1) miscalculating his drug quantity for the purpose of his guidelines offense
level, (2) denying him a two-level minor-participant reduction pursuant to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11421

U.S.S.G. § 3B1.2(b), and (3) imposing a substantively unreasonable sentence.
We affirm.
      First, Nichols argues that the district court erred by holding him
accountable for a kilogram of methamphetamine transported by his co-
conspirators, arguing that he did not personally transport the drugs and was
unaware of that particular drug transaction. Even assuming that the district
court incorrectly calculated Nichols’s drug quantity, however, the Government
has demonstrated that any error was harmless and had no effect on the
sentence     Nichols   received.     Excluding    the   disputed    kilogram     of
methamphetamine from Nichols’s offense level calculation would not have
changed his guidelines range, which would still have been the 240-month
statutory maximum pursuant to U.S.S.G. § 5G1.1(a). See United States v.
Garcia-Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013). Moreover, at sentencing,
the district court convincingly explained that it would have imposed the same
sentence even if it had erred in calculating the correct guidelines range. “The
district judge was firm, plain, and clear in expressing the court’s reasoning,
and we take him at his word.” United States v. Castro-Alfonso, 841 F.3d 292,
298–99 (5th Cir. 2016). Accordingly, we are persuaded that any error was
harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010);
cf. United States v. Ramos, 739 F.3d 250, 253–54 (5th Cir. 2014).
      Next, we review for clear error the denial of Nichols’s request for a two-
level minor-participant reduction pursuant to U.S.S.G. § 3B1.2(b).         United
States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). Nichols did not satisfy his
burden to show by a preponderance of the evidence either “(1) the culpability
of the average participant in the criminal activity” or (2) that he “was
substantially less culpable than that participant.” Id. at 613. And the record
contained evidence that Nichols frequently received and distributed



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                                 No. 16-11421

methamphetamine, understood the scope of the criminal activity, planned the
criminal activity by locating sources of supply as well as customers, made the
decisions in his distribution activities, and benefitted from the criminal
activity. The district court’s finding that Nichols was not entitled to a minor-
participant reduction was not clearly erroneous. See id.
      Finally, we review Nichols’s presumptively reasonable guideline
sentence for abuse of discretion. United States v. Jenkins, 712 F.3d 209, 214
(5th Cir. 2013). Nichols has not demonstrated that his guideline sentence
created an unwarranted sentencing disparity with respect to any similarly
situated defendants. See 18 U.S.C. § 3553(a)(6); United States v. Guillermo
Balleza, 613 F.3d 432, 435 (5th Cir. 2010). His remaining arguments amount
to a mere disagreement with the district court’s balance of the pertinent
sentencing factors, which fails to rebut the presumption of reasonableness or
to establish an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); Jenkins, 712 F.3d at 214.
      AFFIRMED.




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