     Case: 12-10331       Document: 00512096904         Page: 1     Date Filed: 12/28/2012




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

                                                                            FILED
                                                                        December 28, 2012
                                     No. 12-10331
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DUSTIN ANTHONY ENGLER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:11-CR-59-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Dustin Anthony Engler appeals the sentence
imposed following his guilty plea conviction for possession with the intent to
distribute methamphetamine. He was sentenced to 120 months of imprisonment
and three years of supervised release. On appeal, Engler contends that the
district court procedurally erred by (1) considering unproved relevant conduct
when it determined his base offense level and (2) denying a two-level reduction
for his being a minor participant.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10331

      When we consider whether the district court committed any procedural
errors, “such as failing to calculate (or improperly calculating) the Guidelines
range,” we review the district court’s application of the Guidelines de novo and
its factual findings, such as relevant conduct and the extent of the role played
by the defendant, for clear error. Gall v. United States, 552 U.S. 38, 49-51
(2007); United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008); see United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (holding that amount of drugs
attributable to a defendant is a factual finding); United States v. Villanueva, 408
F.3d 193, 203-04 (5th Cir. 2005) (holding that role in the offense is a factual
finding). “A factual finding is not clearly erroneous as long as it is plausible in
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).
      Engler claims that the district court erred in its determination that he was
responsible for approximately 211 grams of methamphetamine. He contends
that he should have been held accountable for only 6.73 grams of
methamphetamine, the amount he admitted in his factual basis and during his
plea. Although he does not challenge that the facts set forth in his presentence
investigation report (PSR) constitute relevant conduct, Engler insists that he
should not have been held accountable for such conduct because the government
offered no evidence to support its relevance.
      In determining the amount of drugs attributable to a defendant, the
district court may rely on the information in a PSR in the absence of rebuttal
evidence.   United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). “The
defendant bears the burden of demonstrating that information the district court
relied on in sentencing is materially untrue.” Davis, 76 F.3d at 84 (internal
quotation marks and citation omitted).
      Here, the district court relied on the PSR’s account of Engler’s relevant
conduct. Although Engler objected to the inclusion of this information in the
PSR, he offered no rebuttal evidence to demonstrate that the information was

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                                 No. 12-10331

materially untrue, inaccurate, or unreliable. Mere objections to the evidence
used by a district court for sentencing purposes do not constitute competent
rebuttal evidence. United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002);
Rodriguez, 602 F.3d at 363; United States v. Parker, 133 F.3d 322, 329 (5th Cir.
1998). Consequently, reliance on this information was not improper. See United
States v. Davis, 450 F. App’x 411, 413-14 (5th Cir. 2011).
      Engler also claims that the district court erred in failing to grant him a
two-level reduction for his “minor” role in the offense. He maintains that the
evidence showed that he was “the low man on the totem pole” and thus less
culpable than most of the other participants in the offense.
      Section 3B1.2(b) authorizes a two-level reduction in a defendant’s offense
level if he was a minor participant. The minor-role adjustment applies to
defendants who are only peripherally involved in the crime. Id. at 204. For
purposes of § 3B1.2, participation in an offense is not to be evaluated with
reference to the entire criminal enterprise of which the defendant was a part.
United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001). Rather, § 3B1.2
asks whether a defendant’s involvement was minor in relation to the conduct for
which he was held accountable. Id.
      Engler may well be described as “the low man on the totem pole,” but his
role in possessing methamphetamine and arranging and conducting sales
thereof were not peripheral to the advancement of the illicit activity to which
Engler pleaded guilty. See Villanueva, 408 F.3d at 203-04. Engler’s roles were
central to possession with intent to distribute methamphetamine and
“coextensive with the conduct for which he was held accountable.” Id. Thus, the
district court did not clearly err in refusing to grant Engler a minor-role
adjustment under § 3B1.2(b).
      In his reply brief, Engler contends for the first time that the government
breached the plea agreement by failing to move formally for the grant of an
additional one-level reduction under U.S.S.G. § 3E1.1(b). We do not consider

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                                 No. 12-10331

contentions raised for the first time in a reply brief.    See United States v.
Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). More to the point, the PSR did
recommend awarding Engler the one-level reduction, and he received it at
sentencing, so there could not have been a breach of the plea agreement by the
government on this question.
      Accordingly, the judgment of the district court is
AFFIRMED.




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