     Case: 18-10929       Document: 00515028626         Page: 1     Date Filed: 07/10/2019




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


                                     No. 18-10929                            FILED
                                   Summary Calendar                      July 10, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ERIC JAMAL GRAYS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-178-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Eric Jamal Grays pleaded guilty to one count of possession, with intent
to distribute, methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c),
and was sentenced below the sentencing range for the advisory Sentencing
Guidelines to, inter alia, 90-months’ imprisonment. He contests his sentence,
contending the district court erred by: including drug amounts found in his
roommate’s bedroom as relevant conduct for the purpose of the Guideline


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-10929

§ 2D1.1 drug-quantity calculation; and applying the Guideline § 3C1.1
enhancement for obstruction of justice.
      Although, post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009).
      In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “A
factual determination is not clearly erroneous if it is plausible in [the] light of
the record as a whole.” United States v. Zamora-Salazar, 860 F.3d 826, 836
(5th Cir.) (internal quotations and citation omitted), cert. denied, 138 S. Ct. 413
(2017).
      On the other hand, for issues not preserved in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Grays must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      First, in the light of the record and our case law, we are unpersuaded by
Grays’ contentions that the district court clearly erred in sentencing him based
on the statements in the presentence investigation report (PSR) made by an
unindicted coconspirator during the course of a police investigation, which



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                                    No. 18-10929

were independently corroborated and had sufficient indicia of reliability. See
United States v. Ortega-Calderon, 814 F.3d 757, 760 (5th Cir. 2016); United
States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014); United States v. Zuniga,
720 F.3d 587, 591–92 (5th Cir. 2013) (facts in a PSR based on coconspirator
statements are not categorically unreliable, and can have sufficient indicia of
reliability if they are corroborated by other details). Grays failed to present
rebuttal evidence demonstrating the facts contained in the PSR were
“materially untrue, inaccurate or unreliable”; and, therefore, the court was
entitled to rely on the coconspirator’s statements in calculating Grays’ drug-
quantity and applying the obstruction enhancement. United States v. Harris,
702 F.3d 226, 230 (5th Cir. 2012) (citation omitted).
      Along that line, Grays’ conclusory constitutional arguments are
unpersuasive. See United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007)
(citing United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999) (“[T]here is
no Confrontation Clause right at sentencing . . .”.)); United States v. Young,
981 F.2d 180, 187 (5th Cir. 1992) (“Hearsay is admissible for sentencing
purposes, including corroborated out-of-court statements by unidentified
[confidential informants], and thus its admission does not violate due process
or the right to confrontation.”).
      Second, the court’s relevant-conduct determination was plausible in the
light of the record as a whole, including the physical evidence found during the
search of the apartment and other reliable evidence that Grays distributed
drugs supplied by his roommate. See U.S.S.G. § 1B1.3(a)(1)(B); United States
v. Ice, 471 F. App’x 293, 294 (5th Cir. 2012); United States v. Giron, 249 F.
App’x 350, 351 (5th Cir. 2007).              Accordingly, the relevant-conduct
determination and the resulting drug-quantity calculation were not clearly
erroneous. United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). In that



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regard, the court did give reasons for its relevant-conduct determination, and
Grays’ challenge—raised for the first time on appeal—to the sufficiency of the
court’s explanation for that determination fails on plain-error review. See
United States v. Mondragon-Santiago, 564 F.3d 357, 364–65 (5th Cir. 2009).
      Third, the district court did not clearly err in imposing the obstruction
enhancement based on Grays’ solicitation of help removing guns and drugs
from his bedroom following his arrest by state authorities on gun-and-drug
charges. See United States v. Alexander, 602 F.3d 639, 641–42 (5th Cir. 2010).
      AFFIRMED.




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