     Case: 15-10842       Document: 00513541729         Page: 1     Date Filed: 06/09/2016




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

                                     No. 15-10842
                                                                                   Fifth Circuit

                                                                                 FILED
                                   Summary Calendar                           June 9, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                  Plaintiff - Appellee

v.

DONALD RAY COX, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-50-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In 2015, Donald Ray Cox, Jr. pleaded guilty to possession, with intent to
distribute, methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). The presentence investigation report (PSR) originally recommended,
inter alia, Cox was accountable for 5.15 kilograms of methamphetamine,
resulting in a base-offense level of 34. Following several enhancements and
reductions, not challenged on appeal, Cox’s total-offense level was 33, with a


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-10842

criminal history category of I, which resulted in an advisory-Sentencing-
Guidelines range of 135 to 168 months’ imprisonment.
      Multiple addenda were issued for the PSR. Relevant here, the second
stated recent tests reflected the average purity of the methamphetamine from
Cox’s supplier was 96.58 percent. As a result, the PSR recommended Cox be
held accountable for 4.97 kilograms of methamphetamine actual, which
resulted in an increased base-offense level of 38. Cox’s revised total-offense
level was 37, resulting in an advisory sentencing range of 210 to 240 months’
imprisonment. Cox objected to the second addendum, asserting, inter alia, the
laboratory tests upon which it relied were insufficient to prove the
methamphetamine’s purity. In rejecting those contentions, a third addendum
maintained Cox presented no evidence in support of his challenge.
      At sentencing, the court overruled Cox’s objections; adopted the PSR’s
factual findings, including those in the second addendum; granted a two-level
safety-valve reduction, resulting in a sentencing range of 168 to 210 months’
imprisonment; and sentenced Cox to 190 months’ imprisonment.                    In
challenging that sentence, Cox asserts the court erred in adopting the PSR’s
factual findings regarding the methamphetamine’s purity.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). 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).




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                                  No. 15-10842

      “Factual findings are not clearly erroneous if they are plausible in light
of the record read as a whole.” United States v. Ayala, 47 F.3d 688, 690 (5th
Cir. 1995). And, a PSR “generally bears sufficient indicia of reliability to be
considered as evidence by the trial judge in making the factual determinations
required by the sentencing guidelines”. United States v. Alford, 142 F.3d 825,
831–32 (5th Cir. 1998) (internal quotation marks omitted). Therefore, Cox
“bears the burden of presenting rebuttal evidence to demonstrate that the
information in the PSR is inaccurate or materially untrue”. United States v.
Scher, 601 F.3d 408, 413 (5th Cir. 2010). In the absence of such evidence, the
court may rely upon the PSR and adopt its factual findings. E.g., Ayala, 47
F.3d at 690.
      Cox asserts the court clearly erred by adopting the PSR’s use of purity
levels associated with methamphetamine seized in 2013 and 2014 from Cox’s
supplier to extrapolate the purity of the methamphetamine Cox possessed
between 2008 and 2010. Although Cox called witnesses at sentencing who
testified there were no purity tests performed on the methamphetamine he
possessed, he failed to present any evidence to rebut the finding the drugs
seized from him were not significantly less pure than those seized in 2013 and
2014. Moreover, the court was entitled to “extrapolate the [drug] quantity from
any information that has sufficient indicia of reliability to support its probable
accuracy”. United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal
quotation marks omitted). Accordingly, Cox has not established the court’s
drug-quantity determination was clear error. E.g., United States v. Sullivan,
584 F. App’x 203, 203–04 (5th Cir. 2014).
      AFFIRMED.




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