     Case: 18-50002       Document: 00514663023         Page: 1     Date Filed: 10/01/2018




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

                                     No. 18-50002                              FILED
                                   Summary Calendar                      October 1, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTONIO AMAR WHITE, also known as Knockout,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:17-CR-595-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       A jury found Antonio Amar White guilty of three counts of distributing
crack cocaine on three separate dates in June 2016. The jury could not reach
a verdict on a fourth count of distributing crack cocaine related to a transaction
on July 7, 2016; the district court declared a mistrial with respect to the fourth
count and dismissed it.          White challenges his three concurrent within-




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-50002

Guidelines sentences of 80 months’ imprisonment, claiming that the district
court erred in calculating his base-offense level.
      First, White asserts the district court erred in calculating the drug
quantity used to determine his offense level under U.S.S.G. § 2D1.1 because it
counted as relevant conduct 21.64 grams of crack cocaine sold to a confidential
informant on July 7th, the basis of the dismissed fourth count. The record
reflects that White was involved in the July transaction at issue; he agreed to
sell the confidential informant one ounce of cocaine and arranged the location
of the meeting, he took the confidential informant’s money and counted it, and
then he handed cocaine to another individual to give to the confidential
informant. Based on White’s personal involvement in the July transaction, the
similarities between the June offenses and the July offense, and the temporal
proximity of the July transaction to the earlier transactions, the reliable
evidence shows by a preponderance of the evidence that the July transaction
was part of the same course of conduct or common scheme or plan. See United
States v. Ocana, 204 F.3d 585, 589-90 (5th Cir. 2000); see also United States v.
Hinojosa, 749 F.3d 407, 415 (5th Cir. 2014). In addition, White did not present
any evidence at the sentencing hearing to demonstrate that the drug quantity
was “materially untrue, inaccurate or unreliable.” United States v. Harris, 702
F.3d 226, 230 (5th Cir. 2012). Based on the foregoing, the district court did not
clearly err in finding that the 21.64 grams of cocaine sold to the confidential
informant in July was relevant conduct for which White should be held
accountable. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005);
see also U.S.S.G. § 1B1.3(a)(2); § 1B1.3, comment. (n.5(B)(i)).
      Second, White contends that his sentence is improper because the
district court relied on judge-found facts in connection with his conduct on the




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                                No. 18-50002

dismissed charge. As White concedes, his claim is foreclosed. See United
States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011).
      AFFIRMED.




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