     Case: 15-10638      Document: 00513455657         Page: 1    Date Filed: 04/07/2016




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

                                    No. 15-10638                                  FILED
                                  Summary Calendar                             April 7, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RALPH MARCELINO CASTRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CR-57


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Ralph Marcelino Castro appeals the 92-month sentence received
following his guilty plea conviction for possession with intent to distribute
methamphetamine. We review sentences for reasonableness. Gall v. United
States, 552 U.S. 38, 46 (2007). We first examine whether the district court
committed any significant procedural error, including “failing to calculate (or
improperly calculating) the Guidelines range.” Id. at 51. If the district court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10638

decision is procedurally sound, we may then consider the substantive
reasonableness of the sentence under an abuse-of-discretion standard. Id.;
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
      In this appeal, Castro addresses only the procedural unreasonableness
of the sentence. He contends that the district erred in determining the base
offense level for sentencing purposes; specifically, Castro argues that the
district court improperly considered other methamphetamine transactions as
relevant conduct and that the district court was not entitled to rely on the
presentence report (PSR) to determine the existence or applicability of these
other offenses. In addition, Castro maintains that the Government failed to
establish the applicability of the importation enhancement of U.S.S.G.
§ 2D1.1(b)(5), as the Government did not show that he possessed imported
methamphetamine or that he knew that the drug was imported. He asserts
that the district court erred by failing to make specific factual findings in
response to his objection to the § 2D1.1(b)(5) enhancement.
      Castro’s assertion that the district court could not increase his sentence
on the basis of relevant conduct because he was not convicted of a conspiracy
is incorrect. See U.S.S.G. § 1B1.3(a)(1)(A), (B). Moreover, the district court
determined relevant conduct based on the quantities of methamphetamine
with which Castro was directly involved, rather than considering any jointly
undertaken criminal activity. Although Castro maintains that the district
court could not use the extraneous quantities of methamphetamine as relevant
conduct because it was “associated with a sentence imposed prior to” the acts
comprising the instant federal offense, see § 1B1.3, comment. (n.8) (2014
edition), Castro was placed in a substance abuse program based on his use of
methamphetamine and marijuana; because the probation officer did not
consider Castro’s personal use quantities as relevant conduct, no violation of



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                                 No. 15-10638

the commentary occurred.         Finally, Castro has not shown that the
methamphetamine purchases considered as relevant conduct were not
sufficiently similar or regular or that the time interval between offenses was
too great to consider them. See United States v. Robins, 978 F.2d 881, 890 (5th
Cir. 1993). Although Castro objected to the relevant conduct determinations
in the PSR and the Addenda, the district court was entitled to rely on the PSR
in the absence of rebuttal evidence. See United States v. Alaniz, 726 F.3d 586,
619 (5th Cir. 2013). Castro has not established that the district court clearly
erred in considering his other drug purchases as relevant conduct. See United
States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).
      Similarly, Castro has not established that the district court clearly erred
in determining the relevant drug quantities. See United States v. Posada-Rios,
158 F.3d 832, 878 (5th Cir. 1998). Although Castro challenged the validity of
the evidence showing that he purchased a substantial quantity of
methamphetamine from William Huffman, the Government’s evidence at
sentencing supported the PSR Addenda and carried sufficient indicia of
reliability to support the sentencing determination.      See United States v.
Golden, 17 F.3d 735, 736 (5th Cir. 1994).
      The importation enhancement of § 2D1.1(b)(5) applies “regardless of
whether the defendant had knowledge of that importation.” United States v.
Serfass, 684 F.3d 548, 552 (5th Cir. 2012). The information included in the
PSR Addenda, together with the evidence at the sentencing hearing,
established by a preponderance of the evidence that the enhancement applied.
See id. at 553; see also Alaniz, 726 F.3d at 619 (permitting reliance on the PSR
in the absence of rebuttal evidence). Although the district court did not make
explicit factual findings with respect to Castro’s objections to this
enhancement, we do not require “that a court must make a ‘catechismic



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regurgitation of each fact determined’” and instead permit the district court to
make implicit findings through adoption of the PSR. United States v. Carreon,
11 F.3d 1225, 1231 (5th Cir. 1994) (citation omitted). Because Castro has not
established that the district court erred in its procedural determination of the
applicable guidelines range, the judgment of the district court is AFFIRMED.
See Gall, 552 U.S. at 51.




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