     Case: 18-11519   Document: 00515349193        Page: 1   Date Filed: 03/18/2020




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

                                                                         FILED
                                    No. 18-11519                    March 18, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

BRANDON SHANE EUSTICE,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant-appellant Brandon Shane Eustice (“Eustice”) pleaded guilty,
without a plea agreement, to one count of conspiracy to possess with intent to
distribute an unspecified about of methamphetamine (“meth”) in violation of
21 U.S.C. §§ 846, 841(a) & (b)(1)(C). The district court sentenced him to 84
months of imprisonment and three years of supervised release, which was
below the guidelines range of 100 to 125 months. Eustice asserts three
sentencing errors on appeal: (1) the district court erred in calculating the
quantity of drugs attributable to him, (2) the district court erred in applying a
sentence enhancement for maintaining a drug premises, and (3) the district
    Case: 18-11519     Document: 00515349193      Page: 2   Date Filed: 03/18/2020



                                  No. 18-11519
court erred in assigning two criminal history points for his state fraud
conviction. We AFFIRM.
                        FACTS AND PROCEEDINGS
      Eustice admitted that from about March 2017 through January 10, 2018,
he knowingly and willfully conspired with others to distribute meth, and
“[m]embers of the conspiracy used Facebook, text messages and phone calls in
addition to face to face meetings to coordinate the sale or [sic] narcotics to each
other and to other individuals known and unknown.” According to the PSR,
Eustice received meth from Lawrence Boone (“Boone”) and Alicia Murfield
(“Murfield”), which he then distributed to his own customer base in Wichita
Falls, Texas, and the surrounding areas. The PSR held Eustice accountable for
127.57 grams of meth that he received from Boone and 283.5 grams of meth
that he received from Murfield, for a total of 411.07 grams of meth.
      On September 20, 2017, officers executed a search warrant at Eustice’s
residence. According to the PSR, officers seized digital scales, meth pipes, an
unknown quantity of meth, and “other drug paraphernalia consistent with
drug trafficking.” On December 14, 2017, officers served an outstanding state
warrant for Eustice at his residence. According to the PSR, subsequent to
arresting Eustice, officers observed a glass meth pipe, digital scales with
suspected meth residue, and a plastic baggie containing suspected meth near
the area where Eustice had been sitting. Based on these encounters, the PSR
applied a two-level sentence enhancement for maintaining a premises for the
purpose of distributing a controlled substance, pursuant to U.S.S.G.
§ 2D1.1(b)(12). After applying a three-level reduction for acceptance of
responsibility, the PSR calculated Eustice’s total offense level as 27.
      In calculating Eustice’s criminal history score, the PSR assigned two
criminal history points for Eustice’s state fraud conviction. Eustice pleaded
guilty to this offense on February 9, 2017 and was sentenced to three years
                                        2
    Case: 18-11519    Document: 00515349193    Page: 3   Date Filed: 03/18/2020



                                No. 18-11519
deferred adjudication probation. On February 1, 2018, Eustice’s probation was
revoked, he was adjudicated guilty, and he was sentenced to 255 days of
imprisonment. Based in part on this conviction, the PSR assessed Eustice’s
criminal history category as IV and the guideline imprisonment range as 100
months to 125 months.
      Eustice filed objections to the PSR. Relevantly, he objected to the
quantity of drugs attributed to him and application of the drug premises
sentence enhancement. The probation officer filed an addendum to the PSR,
rejecting all of Eustice’s relevant objections. Eustice then reasserted his
objections to the PSR as objections to the PSR addendum and raised a new
objection to the assignment of two criminal history points for his state fraud
conviction. He argued that only one point should have been assessed, which
would have resulted in a criminal history category of III. With respect to the
drug quantity calculation, Eustice affirmatively stated that he did not dispute
the amount of meth attributed to him through Boone, a concession that he
acknowledged and “st[ood] by” at oral argument before this panel. In response,
to support the drugs attributed to Eustice through Murfield, the government
provided text messages between Eustice and Murfield discussing numerous
drug transactions, many of which took place at Eustice’s residence.
      At the sentencing hearing on November 13, 2018, Eustice re-urged his
objections to the PSR and PSR addendum. The district court overruled the
objections “for the reasons stated in the Government’s Response and the
Addendum.” The district court adopted the probation officer’s fact findings and
conclusions as to the appropriate guidelines calculations but varied downward
“based upon the Defendant’s Sentencing Memorandum related to his childhood
upbringing [and] his addiction” and sentenced Eustice to 84 months of
imprisonment.


                                      3
    Case: 18-11519       Document: 00515349193     Page: 4   Date Filed: 03/18/2020



                                    No. 18-11519
                                   DISCUSSION
    I.      Drug Quantity Calculation
         First, Eustice challenges the district court’s calculation of the amount of
drugs attributable to him on four grounds: (1) the calculation was based on
unreliable and insufficient evidence, (2) the district court improperly applied
the multiplier method, (3) the district court included drugs that Eustice
personally consumed in its calculation, and (4) the district court failed to
discount the estimate to account for uncertainty in the calculation. The
government agrees that Eustice preserved these issues. Therefore, we review
the district court’s legal interpretations of the guidelines de novo and its
findings of fact, including the calculation of drugs attributable to Eustice, for
clear error. United States v. Clark, 389 F.3d 141, 142 (5th Cir. 2004). The
calculation will be upheld so 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) (quoting
United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).
         We disagree that the district court’s calculation was based on unreliable
and insufficient evidence. In arriving at a sentence, the district court may
consider any information that has sufficient indicia of reliability to support its
probable accuracy, including estimates of drug quantities. United States v.
Valdez, 453 F.3d 252, 267 (5th Cir. 2006). Here, the district court considered
the information in the PSR, the PSR addendum, Eustice’s objections, and the
government’s responses to Eustice’s objections, including the text messages
between Eustice and Murfield. Eustice does not challenge the 127.57 grams of
meth that were attributed to him through Boone, which he expressly agreed to
in his objections to the PSR addendum. The 283.5 grams of meth that were
attributed to Eustice through Murfield were adequately supported by the text
messages that the government provided in response to Eustice’s objections to
the PSR addendum. Therefore, the total calculation of 411.07 grams of meth
                                          4
    Case: 18-11519       Document: 00515349193     Page: 5   Date Filed: 03/18/2020



                                    No. 18-11519
attributable to Eustice is “plausible in light of the record read as a whole.”
Betancourt, 422 F.3d at 246 (quoting Alford, 142 F.3d at 831).
         We also disagree that the district court improperly applied the multiplier
method. Concerns about the “multiplier method” arise when the district court
“extrapolate[s] from a known event to predict what happened in other
unknown events.” United States v. Kearby, 943 F.3d 969, 975 (5th Cir. 2019).
Nowhere in the PSR is there any mention of extrapolation. Rather, the
amounts attributed to Eustice were based on evidence regarding drug
quantities involved in a number of transactions between Eustice and Boone
and Murfield.
         Eustice’s argument that the district court erred by considering meth he
purchased for personal use is similarly unavailing. In Clark, this court joined
“every other circuit that ha[d] considered this issue” and held that a district
court may properly consider drugs possessed by a defendant for his personal
consumption when calculating a sentence for conspiracy to possess with intent
to distribute. 389 F.3d at 142.
         Finally, we reject Eustice’s argument that the district court erred by
refusing to discount the estimate to account for uncertainty. The drug quantity
calculation was adequately supported, and Eustice cites no precedent
demonstrating that reduction is required in these circumstances.
         Therefore, the district court did not clearly err in calculating the
quantity of meth attributable to Eustice.
   II.      Drug Premises Sentence Enhancement
         Next, Eustice challenges the district court’s application of a two-level
sentence enhancement for maintaining a drug premises pursuant to U.S.S.G.
§ 2D1.1(b)(12). He argues that this was (1) procedural error because the
district court did not consider commentary note 17 to § 2D1.1(b)(12), and (2)
substantive error because only bare assertions supported the enhancement.
                                          5
    Case: 18-11519     Document: 00515349193     Page: 6   Date Filed: 03/18/2020



                                  No. 18-11519
The government agrees that Eustice preserved these arguments. Therefore, we
review the district court’s interpretation of the guidelines de novo and its
findings of fact for clear error. United States v. Haines, 803 F.3d 713, 743 (5th
Cir. 2015).
      Guideline § 2D1.1(b)(12) instructs the district court to apply a two-level
sentence enhancement “[i]f the defendant maintained a premises for the
purpose of manufacturing or distributing a controlled substance.” The
enhancement “applies to a defendant who knowingly maintains a premises . . .
for the purpose of manufacturing or distributing a controlled substance,
including storage of a controlled substance for the purpose of distribution.”
§ 2D1.1(b)(12) cmt. n.17. Although manufacturing or distributing need not be
the sole purpose for which the premises is maintained, it must “be one of the
defendant’s primary or principal uses for the premises, rather than one of the
defendant’s incidental or collateral uses for the premises.” Id. “In making this
determination, the court should consider how frequently the premises was
used by the defendant . . . for lawful purposes.” Id.
      The district court did not err procedurally. At sentencing, the district
court need not discuss all the facts and reasoning relevant to its guidelines
calculation. United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017).
An adoption of the PSR’s factual findings and conclusions is sufficient as long
as those findings and conclusions are adequate to support the sentence
imposed. Id. In this case, the probation officer discussed commentary note 17
to § 2D1.1(b)(12) in the PSR addendum and concluded that application of the
sentence enhancement was warranted. At the sentencing hearing, the district
court adopted “the Probation Officer’s . . . fact findings and conclusions as to
the appropriate Guideline calculations.” Therefore, the district court implicitly
considered commentary note 17 to § 2D1.1(b)(12) by adopting the probation
officer’s analysis.
                                        6
    Case: 18-11519      Document: 00515349193      Page: 7   Date Filed: 03/18/2020



                                   No. 18-11519
        Nor did the district court err substantively. The district court may
consider any information with sufficient indicia of reliability when crafting a
sentence. Valdez, 453 F.3d at 267. Here, the district court relied on the
information in the PSR, the PSR addendum, Eustice’s objections, and the
government’s responses to Eustice’s objections. The items that law
enforcement seized from Eustice’s residence, including digital scales, and the
text messages that Eustice exchanged with Murfield, which reference
numerous drug transactions at Eustice’s residence, constitute specific sources
of evidence with sufficient indicia of reliability to support the district court’s
application of the enhancement.
        Therefore, the district court did not err in applying the drug premises
sentence enhancement.
 III.      Criminal History
        Finally, Eustice challenges the district court’s calculation of his criminal
history score. This court reviews factual determinations made in applying the
guidelines for clear error, but “[w]hether the sentencing guidelines apply to a
prior conviction is a question of law, which we review de novo.” United States
v. Valdez-Valdez, 143 F.3d 196, 197–98 (5th Cir. 1998). Here, because the
government agrees that Eustice preserved this issue and the parties only
dispute which guidelines apply, our review is de novo.
        Guideline § 4A1.1 instructs the district court to “[a]dd 3 [criminal
history] points for each prior sentence of imprisonment exceeding one year and
one month,” § 4A1.1(a), “[a]dd 2 [criminal history] points for each prior
sentence of imprisonment of at least sixty days not counted in (a),” § 4A1.1(b),
and “[a]dd 1 [criminal history] point for each prior sentence not counted in (a)
or (b),” § 4A1.1(c). Section 4A1.2(a)(1) defines a “prior sentence” as “any
sentence previously imposed upon adjudication of guilt . . . .” And § 4A1.2(b)(1)
defines “sentence of imprisonment” as “a sentence of incarceration . . . .”
                                          7
    Case: 18-11519      Document: 00515349193      Page: 8    Date Filed: 03/18/2020



                                   No. 18-11519
      The government argues that Eustice’s 255-day imprisonment sentence
for his state fraud conviction, which was imposed upon adjudication of guilt
based on the revocation of his deferred adjudication probation, falls within the
definition of a “prior sentence of imprisonment.” In fact, § 4A1.2(k)(1)
specifically instructs that upon a revocation of probation, the district court
should “add the original term of imprisonment to any term of imprisonment
imposed upon revocation,” and use the resulting total “to compute the criminal
history points for § 4A1.1(a), (b), or (c), as applicable.”
      Eustice disagrees. He argues that diversionary dispositions are always
governed by § 4A1.2(f), which states that diversions from the judicial process
without a finding of guilt result in no criminal history points, and “diversionary
disposition[s] resulting from a finding or admission of guilt, or a plea of nolo
contendere, in a judicial proceeding [are] counted as a sentence under
§ 4A1.1(c) even if a conviction is not formally entered . . . .” According to
Eustice, diversionary dispositions are to be handled in one of two ways: If there
is no finding or admission of guilt, no criminal history points are assessed.
Contrariwise, if there is a finding or admission of guilt, as there was in this
case, one criminal history point is assessed under § 4A1.1(c). Eustice argues
that U.S.S.G. § 4A1.1(a) and (b) are never applicable to diversionary
dispositions.
      In Valdez-Valdez, we affirmed an assessment of two criminal history
points pursuant to U.S.S.G. § 4A1.1(b) for a deferred adjudication sentence
involving six years of probation and 180 days of imprisonment on work release.
Valdez-Valdez, 143 F.3d at 197, 203. Like Eustice, the defendant contended
that only one criminal history point should have been assessed pursuant to
U.S.S.G. § 4A1.1(c). Id. at 201. First, the court noted that “[a] sentence of
probation is to be treated as a sentence under § 4A1.1(c) unless a condition of
probation requiring imprisonment of at least sixty days was imposed.” Id. at
                                          8
      Case: 18-11519    Document: 00515349193      Page: 9   Date Filed: 03/18/2020



                                   No. 18-11519
202 (quoting U.S.S.G. § 4A1.2, cmt. n.2). Since the defendant “was sentenced
to—and apparently served—180 days in jail, albeit on work release,” the court
found that “within the contemplation of § 4A1.1(b), a condition of his probation
required imprisonment of ‘at least sixty days,’” and the conviction therefore
counted for two criminal history points. Id. (emphasis omitted). The court went
on to explain that “[a] plain reading of § 4A1.1 illustrates that Valdez’s
sentence fits squarely within subsection (b), and not within subsection (c).” Id.
       The only plausible way to apply § 4A1.1 both chronologically and
       logically, is to proceed from (a) to (b) to (c): Subsection (b) applies
       only to the extent a sentence is not counted in subsection (a), and
       subsection (c) applies only to the extent a sentence is not counted
       in either (a) or (b). As no part of Valdez’s sentence is counted under
       (a), and his entire sentence is counted under (b), there is nothing
       left to count under (c). Indeed, his sentence would fall under (c)
       only if his deferred adjudication included no time to be served in
       jail.
Id.
       This case is not directly controlled by Valdez-Valdez because Eustice’s
imprisonment sentence was imposed upon revocation of his deferred
adjudication probation, rather than as a condition of his deferred adjudication
probation. However, the court’s rationale in Valdez-Valdez cannot be
reconciled with Eustice’s argument that U.S.S.G. § 4A1.1(a) and (b) are never
applicable to deferred adjudications. Rather, applying the logic of Valdez-
Valdez confirms that two criminal history points were properly assessed in this
case. Eustice’s sentence of 255 days of imprisonment is a “prior sentence”
because it was “previously imposed upon adjudication of guilt.” § 4A1.2(a)(1).
It is also a “sentence of imprisonment” because it involves incarceration.
§ 4A1.2(b)(1). Therefore, proceeding from § 4A1.1(a) to (b) to (c), as Valdez-
Valdez instructs, it is clear that no part of Eustice’s sentence is counted under
(a), his entire sentence is counted under (b), and there is thus nothing left to
count under (c). Subsection (c) would apply only if the deferred adjudication
                                         9
   Case: 18-11519     Document: 00515349193      Page: 10   Date Filed: 03/18/2020



                                  No. 18-11519
had not resulted in at least 60 days of imprisonment at the time of the federal
sentencing. Here, Eustice’s revocation had resulted in 255 days of
imprisonment at the time of his federal sentencing.
      This interpretation of the guidelines is consistent with the Eighth
Circuit’s approach in United States v. Townsend, 408 F.3d 1020 (8th Cir. 2005).
There, the court affirmed an assessment of two criminal history points for the
defendant’s deferred judgment on a state burglary conviction where the
defendant was twice found in violation and sentenced to terms of imprisonment
totaling seventy-five days. Id. at 1025–26. The court held that these probation
violations and resulting prison sentences were effectively probation
revocations that fell within U.S.S.G. § 4A1.2(k)(1). Id. at 1026. Further, “[e]ven
assuming the sentences could not be considered revocations of probation,” the
court found that the sentences were “countable under section 4A.1.1(b)”
because they clearly fell within the definition of “prior sentence.” Id.
      Eustice is correct that the Eleventh Circuit took a slightly different
approach in United States v. Baptiste, 876 F.3d 1057 (11th Cir. 2017), but that
case is distinguishable. There, the defendant had a state court conviction
described in the PSR as “[a]djudication withheld, 198 days time served.” Id. at
1059. The court held that, “where, as here, a defendant has pled guilty to a
prior crime and adjudication has been withheld, that disposition must be
counted for a single criminal-history point under § 4A1.1(c) of the Guidelines,
regardless of whether the sentencing court purported to impose—or even
actually imposed—198 days or no days of imprisonment.” Id. The court
reasoned that sentences imposed upon deferred adjudications typically fall
outside the statutory definition of “prior sentence” because no adjudication of
guilt occurs. Id. at 1062 (citing U.S.S.G. § 4A1.2(a)(1)). The only exception is
when a defendant pleads guilty or nolo contendere, in which case one criminal
history point should be assessed under § 4A1.1(c). Id. Applying the statutory
                                       10
    Case: 18-11519    Document: 00515349193      Page: 11    Date Filed: 03/18/2020



                                  No. 18-11519
interpretation canon “expressio unius,” the court found that the express
inclusion of U.S.S.G. § 4A1.1(c) in § 4A1.2(f) implies the exclusion of the rest of
§ 4A1.1, including § 4A1.1(b). Id.
      This application of “expressio unius” to U.S.S.G. § 4A1.2(f) could support
Eustice’s contention that § 4A1.1(a) and (b) are never applicable to deferred
adjudications. However, the Eleventh Circuit only needed to apply that canon
of construction because it concluded that the sentence at issue did not fall
within the definition of “prior sentence” in § 4A1.2(a)(1). Here, by contrast,
Eustice’s sentence was imposed upon adjudication of guilt—when his probation
was revoked. It therefore falls within the definition of “prior sentence,” and
§ 4A1.1(b) applies by its own terms—it need not be read into § 4A1.2(f), where
Congress may have intentionally excluded it.
      Therefore, the district court properly assigned two criminal history
points.
                                CONCLUSION
      For these reasons, we AFFIRM the judgment of the district court.




                                        11
