     Case: 18-60119       Document: 00514844842         Page: 1     Date Filed: 02/21/2019




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

                                     No. 18-60119                          FILED
                                   Summary Calendar                 February 21, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

THOMAS SCRUGGS, also known as Tommy,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:16-CR-38-9


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Thomas Scruggs pleaded guilty, pursuant to a plea agreement, to
conspiracy to possess, with intent to distribute, and distribution of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846.
He was sentenced, inter alia, to 240 months’ imprisonment. In challenging his
sentence, Scruggs contends the district court procedurally erred in: calculating
the drug quantity for which he was held responsible, under Sentencing


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 18-60119      Document: 00514844842     Page: 2   Date Filed: 02/21/2019


                                  No. 18-60119

Guideline § 2D1.1; and applying an enhancement for obstruction of justice,
pursuant to Guideline § 3C1.1.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). 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). As discussed infra, the two claims of procedural error are
reviewed for clear error.
      Scruggs’ drug-quantity contention is unavailing. There was testimony
at sentencing regarding the amount of methamphetamine transferred directly
to Scruggs for distribution, i.e., four to five pounds a month for three to four
months and then 10 pounds a month for a year. Based on this testimony, the
court found, conservatively, that Scruggs was responsible for 132 pounds of
methamphetamine.         In addition, Scruggs failed to present evidence
demonstrating     the    presentence    investigation    report’s   drug-quantity
calculation is “materially untrue, inaccurate or unreliable”. United States v.
Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal quotation marks and
citation omitted). Given the above, the court’s factual finding for drug quantity
was not clearly erroneous because it was “plausible in [the] light of the record
as a whole”. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)
(internal quotation marks and citation omitted); United States v. Valdez, 453
F.3d 252, 262 (5th Cir. 2006).



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                                 No. 18-60119

      Likewise unavailing is Scruggs’ claim regarding the obstruction
enhancement. Testimony from a codefendant’s trial (at which the sentencing
judge had presided) and Scruggs’ sentencing regarding direct and indirect
threats from Scruggs, as well as evidence of additional threats presented to the
court at the sentencing hearing, establish Scruggs attempted to intimidate
witnesses to prevent them from testifying. See U.S.S.G. § 3C1.1 & cmt. n.4(A).
The court’s findings of fact in applying the obstruction enhancement were not
clearly erroneous because they were, again, plausible in the light of the record
as a whole. See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
2008); see also United States v. Powers, 168 F.3d 741, 752–53 (5th Cir. 1999).
      AFFIRMED.




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