     Case: 15-50874      Document: 00513720481         Page: 1    Date Filed: 10/17/2016




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

                                    No. 15-50874
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        October 17, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JOHNNY ANGEL ARMENDARIZ, also known as Johnny Armendariz,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:15-CR-106-3


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Johnny Angel Armendariz appeals from the sentence imposed for his
conviction for conspiracy to possess with intent to distribute 100 grams or more
of heroin. The district court sentenced him within his guidelines range to 87
months of imprisonment and five years of supervised release.
       In his first argument, Armendariz contends that the district court clearly
erred in determining the amount of heroin attributable to him for purposes of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50874

U.S.S.G. § 2D1.1(c). He argues that the district court’s finding was based on
an extrapolation drawn solely from a statement he made while under the
influence of heroin and was not supported by any independent investigation by
law enforcement agents.
      We review the district court’s finding of the drug quantity attributable
to a defendant for clear error and will affirm the finding as long as it is
“plausible in light of the record as a whole.” United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005) (internal quotation marks and citations omitted).
A district court may determine drug amounts for sentencing purposes provided
the finding is based on reliable evidence, such as the presentence report
(“PSR”). United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). “When
faced with facts contained in the PSR that are supported by an adequate
evidentiary basis with sufficient indicia of reliability, a defendant must offer
rebuttal evidence demonstrating that those facts are materially untrue,
inaccurate or unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012) (internal quotation marks and citation omitted). In arriving at a drug
quantity, the court may also rely upon information provided by witnesses,
including uncorroborated hearsay, if the information bears the minimum
indicia of reliability. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996).
      The district court’s finding of the appropriate drug quantity is supported
by Armendariz’s own admission that he obtained at least five ounces of heroin
per month for a year or more from a source and the testimony of the law
enforcement agent who interviewed Armendariz when he made that
statement. The agent testified that Armendariz was coherent and did not
appear to be under the influence of heroin or any other substance.
      Armendariz did not present any evidence rebutting the agent’s
testimony, and the district court found the agent to be a credible witness.



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                                  No. 15-50874

“Credibility determinations in sentencing hearings are peculiarly within the
province of the trier-of-fact.” United States v. Sotelo, 97 F.3d 782, 799 (5th Cir.
1996) (internal quotation marks and citation omitted).
      Moreover, Armendariz’s claim that he was under the influence of heroin
at the time of his statement does not automatically make his statement
unreliable. See United States v. Reynolds, 367 F.3d 294, 299 (5th Cir. 2004)
(finding that a confession was voluntary despite the defendant’s claim that he
had taken methamphetamine an hour before he was arrested); United States
v. Blake, 481 F. App’x 961, 962–63 (5th Cir. 2012) (unpublished) (finding that
a confession was voluntary despite the defendant’s claim that he was
intoxicated at the time of his questioning). Instead, the relevant question is
whether Armendariz’s statement bore the minimum indicia of reliability.
Here, the agent who interviewed Armendariz stated that he could not tell
whether Armendariz was under the influence of heroin at the time of the
interview but that he believed Armendariz was “capable of communicating”
and was “coherent.” The district court found the agent credible and found that
the agent’s testimony corroborated the drug quantity calculation in the PSR.
      Accordingly, based on the record as a whole, the district court did not
clearly err in finding that Armendariz was responsible for 1.7 kilograms of
heroin. See Betancourt, 422 F.3d at 246.
      Armendariz     also   contends    that   his   sentence   is   substantively
unreasonable based on his arguments in the district court for a downward
variance. Specifically, he asserts that he had a lifetime addiction to more than
five major drugs, managed to stay gainfully employed despite his drug
addictions, and was a loving husband and father. According to Armendariz,
his sentence also is substantively unreasonable because the district court
committed a clear error in judgment by failing to rule on whether his admission



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                                 No. 15-50874

about the quantity of heroin he regularly received was unreliable due to his
heroin use the morning of the day he made that admission.
      Because Armendariz did not object in the district court to the substantive
reasonableness of his sentence, plain error review applies to this issue. See
United States v. Heard, 709 F.3d 413, 425 (5th Cir. 2013). The district court
implicitly ruled that Armendariz’s admission was reliable despite his heroin
use when the district court found that the agent’s testimony was credible. The
district court had before it Armendariz’s arguments for a lesser sentence but
decided that a sentence at the bottom of his guidelines range was appropriate.
      “[T]he sentencing judge is in a superior position to find facts and judge
their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).   Armendariz has not rebutted the presumption of reasonableness
applicable to his sentence, much less demonstrated plain error. See United
States v. Washington, 480 F.3d 309, 314 (5th Cir. 2007).
      The judgment of the district court is AFFIRMED.




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