     Case: 16-11432      Document: 00514482168         Page: 1    Date Filed: 05/22/2018




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

                                                                                  FILED
                                    No. 16-11432                              May 22, 2018
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DWIGHT CLARK TONEY, also known as “D,”

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-466-5


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Dwight Clark Toney pleaded guilty, without a plea
agreement, to conspiracy to distribute a controlled substance, namely 3,4-
methlyenedioxy-N-ethylcathinone (“ethylone” or “Molly”). The district court
sentenced him within the applicable Guidelines range to 54 months of
imprisonment, to be followed by three years of supervised release. Ethylone is
not listed in the Guidelines, so the presentence report (PSR) used a drug with


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11432     Document: 00514482168     Page: 2   Date Filed: 05/22/2018


                                  No. 16-11432

a comparable chemical structure, methlyenedioxy-N-ethylamphetamine
(“MDEA”), to determine the base offense level. See U.S.S.G. § 2D1.1, comment.
(n.6). Pursuant to the commentary to § 2D1.1, the PSR converted the different
controlled substances to their marijuana equivalents to determine a single
offense level. For the Molly/MDEA, the PSR used the Guidelines conversion
rate of one gram of MDEA to 500 grams of marijuana. On appeal, Toney argues
that when the district court denied his objection to the 1:500 ratio, it committed
a procedural error by failing to recognize its authority to vary from the
Guidelines based on Toney’s policy arguments.
      The Government contends that plain error review applies because Toney
failed to preserve this issue below. See Puckett v. United States, 556 U.S. 129,
135 (2009). Even if the issue was preserved, however, Toney is not entitled to
relief. See United States v. Alcantar, 733 F.3d 143, 146 n.4 (5th Cir. 2013).
The district court commits a “significant procedural error” by “failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
Here, the district court repeatedly referred to the Guidelines as advisory,
considered the parties’ arguments and the appropriate sentencing factors, and
gave reasons for its sentence, which reasons were tied to those factors. Toney
has not shown any error, much less a plain one. See United States v. Fraga,
704 F.3d 432, 439 (5th Cir. 2013).
      The district court’s judgment is AFFIRMED.




                                        2
