     Case: 14-10288      Document: 00512848923         Page: 1    Date Filed: 11/25/2014




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

                                    No. 14-10288                                   FILED
                                  Summary Calendar                         November 25, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL JASON DEARS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-30-16


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Michael Jason Dears pleaded guilty to one charge of conspiring to
possess a controlled substance with intent to distribute and was sentenced to
serve 168 months in prison and a three-year term of supervised release. Now,
he argues that the district court committed clear error at sentencing by
erroneously calculating the amount of heroin for which he should be held
responsible under U.S.S.G. § 1B1.3. Under Dears’s view, heroin attributable


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10288    Document: 00512848923     Page: 2   Date Filed: 11/25/2014


                                 No. 14-10288

to his state conviction should not have been used to calculate the instant
sentence. Dears has not shown error in connection with his sentence.
      We review this claim for clear error. See United States v. Betancourt,
422 F.3d 240, 244-45 (5th Cir. 2005). As long as a factual finding is plausible
in light of the record as a whole, it is not clearly erroneous and should be
upheld. United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
      “A presentence report generally bears sufficient indicia of reliability to
be considered as evidence by the sentencing judge in making factual
determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010)
(internal quotation marks and citation omitted). The defendant bears the
burden of presenting evidence to show that the facts contained in the
presentence report are inaccurate or materially untrue. Alaniz, 726 F.3d at
619. Because Dears adduced no evidence to rebut the factual findings in the
PSR, the district court was free to adopt those findings, including the finding
that he was responsible for more than eight kilograms of heroin. See Alaniz,
726 F.3d at 619.
      Insofar as Dears contends that amounts of heroin involved with his state
offense could not be used to calculate his federal sentence under U.S.S.G.
§ 1B1.3, comment.(n.8), he misreads that note. Because this case does not
involve grouping of offenses under U.S.S.G. § 3D1.2(d), § 1B1.3 is inapplicable.
Cf. United States v. Bell, 46 F.3d 442, 445 (5th Cir. 1995) (“Since the state and
federal charges arose from the same criminal conduct, all of the defendant’s
conduct underlying the state charges would have fallen within the definition
of ‘relevant conduct’ under the guidelines.”); United States v. Rosogie, 21 F.3d
632, 634 (5th Cir. 1994) (noting that the Constitution does not prohibit dual
sovereigns from separately punishing an individual for the same conduct that
violates both state and federal laws).



                                         2
    Case: 14-10288     Document: 00512848923   Page: 3   Date Filed: 11/25/2014


                                No. 14-10288

      Finally, to the extent Dears complains that he was sentenced based on
acts he took before the explicit date mentioned in the indictment, this
argument offers him no succor. Although these quantities are arguably outside
the time frame of the conspiracy alleged in the indictment, they are
attributable to Dears as relevant conduct because they are part of the same
scheme as the offense of conviction. See United States v. McCaskey, 9 F.3d 368,
375 (5th Cir. 1993).
      AFFIRMED.




                                      3
