     Case: 17-10927       Document: 00514549637          Page: 1    Date Filed: 07/11/2018




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

                                                                                   FILED
                                     No. 17-10927                              July 11, 2018
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROLANDO HUMPHREY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-256-1


Before BARKSDALE, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Rolando      Humphrey        challenges     his    sentence     of    240         months’
imprisonment, imposed following his guilty-plea conviction for possession with
intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1).
       In calculating the quantity of drugs sold by Humphrey for the purposes
of Sentencing Guideline § 2D1.1, the district court found the one kilogram of
cocaine seized from Humphrey’s automobile did not reflect the scale of his


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10927

offense because Humphrey admitted to selling one fourth of a kilogram of
cocaine at least once, but sometimes three times, a week during the two years
before his arrest.   The court, therefore, estimated his past cocaine sales
(although rounding down to one fourth of a kilogram once a week) and
aggregated these amounts in its drug-quantity finding. As he did in district
court, Humphrey contends the court unreasonably aggregated the amount of
drugs he admitted to selling.
      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, as in this instance, 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). The court’s determination of
“relevant conduct” under Guideline § 1B1.3 is a factual finding, reviewed only
for clear error. United States v. Rhine, 583 F.3d 878, 883–85 (5th Cir. 2009).
      “A defendant convicted of a drug offense is sentenced based on the
amount of drugs involved in the offense”; but, “offense” is defined as “the
offense of conviction and all relevant conduct”.       U.S.S.G. § 1B1.1.     The
comments to Guideline § 2D1.1 specify that “quantities of drugs not specified
in the count of conviction” are relevant conduct and “may be considered in
determining the offense level”. U.S.S.G. § 2D1.1, cmt. 5; Rhine, 583 F.3d at
885; United States v. Robins, 978 F.2d 881, 889–90 (5th Cir. 1992).
Accordingly, the court, in applying § 2D1.1, did not err in considering as



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                                No. 17-10927

relevant conduct Humphrey’s admission to selling more than the kilogram that
was seized from his automobile. Rhine, 583 F.3d at 884–85.
     Especially in the light of Humphrey’s admitting to selling one fourth of
a kilogram of cocaine at least once a week, the court did not clearly err in
finding the amount of drugs seized from Humphrey did not reflect the scale of
his offense.   U.S.S.G. § 2D1.1, cmt. 5.       The court properly considered
Humphrey’s admission to selling more than the one kilogram of cocaine seized
from his automobile and plausibly determined he was not merely a one-time
drug distributor. Robins, 978 F.2d at 890.
     AFFIRMED.




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