     Case: 16-11628      Document: 00514220883        Page: 1     Date Filed: 11/01/2017




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

                                   No. 16-11628                                 FILED
                                 Summary Calendar                       November 1, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

LARRY DANIEL MAXEY,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 4:16-CR-119-4




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Larry Maxey appeals his conviction of, and sentence for, conspiracy 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 16-11628

possess with intent to distribute methamphetamine. Maxey contends that the
district court procedurally and substantively erred in relying on the findings
in the presentence report (“PSR”) to determine the quantity of drugs attributed
to him. Because Maxey did not raise any objection to the PSR, review is only
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009); Puckett v. United States, 556 U.S. 129, 135 (2009).

      Questions of fact capable of resolution by the district court on proper
objection at sentencing can never be plain error.      United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991). In any event, Maxey made no attempt to rebut
the factual statements in the PSR, so the court was entitled to adopt them
without further inquiry. See United States v. Cabrera, 288 F.3d 163, 173−74
(5th Cir. 2002). Maxey has shown no error, plain or otherwise.

      In challenging the substantive reasonableness of the sentence, Maxey
has not shown that the court failed to take into account a significant factor or
that it gave significant weight to an improper factor or committed a clear error
in judgment in balancing the 18 U.S.C. § 3553(a) factors. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Thus, Maxey has not rebutted the
presumption of reasonableness that applies to his below-guidelines sentence.
See United States v. Simpson, 796 F.3d 548, 557 & n.51 (5th Cir. 2015).

      Maxey’s claim, for the first time on appeal, that his plea was not volun-
tarily entered because he did not know the quantity of drugs that would be
attributed to him is subject to plain-error review. See Puckett, 556 U.S. at 135.
The record of his rearraignment reflects that Maxey acknowledged, under oath
in open court, that he understood the consequences of his plea, including the
maximum sentence that could be imposed; the operation of the sentencing
guidelines; and the court’s authority to rely on facts in the PSR, regardless of
any stipulations, to determine the guideline range.             Maxey’s sworn


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                                  No. 16-11628

“declarations in open court carry a strong presumption of verity.” Blackledge
v. Allison, 431 U.S. 63, 73−74 (1977). He has not shown any error, plain or
otherwise, with respect to the validity of his plea.

      Maxey avers that his counsel was ineffective in failing to challenge the
government’s evidence, the witnesses, and the PSR with respect to the quan-
tity of drugs attributed to him. The determination whether counsel should
have challenged the findings in the PSR is a fact-intensive inquiry, and the
issues raised were not developed in the district court. Therefore, we decline to
review this claim on direct appeal. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014).

      AFFIRMED.




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