                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                          F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                              August 31, 2004

                                                                       Charles R. Fulbruge III
                                    No. 03-40898                               Clerk


                        UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,
                                       versus

                              LUIS JAVIER RANGEL,

                                                           Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                           (B-00-CR-317-ALL)


Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit

Judges.

PER CURIAM:*

     Luis Javier Rangel pleaded guilty to possession with intent to

distribute less than 500 grams of cocaine.             His sentence was based

not only on the 297.7 grams of cocaine found in his possession when

arrested, but also on an additional quantity he admitted purchasing

prior to that arrest; the latter quantity was considered relevant

conduct,   pursuant     to    Sentencing       Guidelines   §    1B1.3.      Rangel

challenges his sentence, claiming: the district court erroneously

calculated     the   amount    of    cocaine    involved    in   the    pre-arrest


     *
          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that this opinion should not be published and is not precedent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.
purchases;   and   those    purchases     were   for    personal    use   and,

therefore, are not relevant conduct.         AFFIRMED.

                                     I.

     On 5 July 2000, officers in Harlingen, Texas, stopped Rangel’s

automobile and searched it with his consent.            The officers found

297.7 grams of cocaine in the automobile and on Rangel.               He was

charged with conspiring to possess and with possession with intent

to distribute less than 500 grams of cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C).        Pursuant to a plea agreement,

Rangel pleaded guilty to possession with intent to distribute and

the Government dismissed the conspiracy charge.

     During an interview for use in preparing the presentence

investigation   report     (PSR),   Rangel   admitted    to   the   probation

officer that he had made two purchases within six months of his

arrest that involved amounts of cocaine similar to the amount of

cocaine for which he was convicted.          The PSR included these pre-

arrest purchases as relevant conduct under Guidelines § 1B1.3 for

purposes of calculating Rangel’s sentence and stated they involved

approximately 595.4 grams of cocaine (297.7 grams for each of the

two pre-arrest purchases).      The resulting drug quantity was 893.1

grams (297.7 grams for the instant offense, plus 594.4 grams for

the two pre-arrest purchases). Because that quantity was more than

500 grams, but less than two kilograms, of cocaine, Rangel’s base

offense level was 26.      U.S.S.G. § 2D1.1(c)(7).      The PSR also stated


                                     2
that Rangel admitted:     to a daily cocaine habit of approximately

1/8 of an ounce (approximately 3.5 grams); and to buying and

selling cocaine in order to support that habit. With a recommended

three-level downward adjustment for acceptance of responsibility,

the PSR calculated Rangel’s total offense level at 23.       Coupled

with his category II criminal history, his Guidelines sentence

range was 51 to 63 months’ imprisonment.

     In his pre-sentencing response to the PSR, Rangel filed only

one objection:    he “object[ed]” to the PSR paragraph that detailed

his two pre-arrest purchases, but without further explanation.    At

sentencing, his counsel objected, but without Rangel’s testifying,

to the PSR’s inclusion of the two pre-arrest purchases as relevant

conduct; his attorney stated Rangel purchased that cocaine for his

personal use.    Accordingly, Rangel’s attorney urged Rangel should

be sentenced based only on the 297.7 grams found at the time of his

arrest; this would result in a sentencing range of 27-33 months.

(Rangel did not object at sentencing to the PSR’s stating that each

of the two pre-arrest purchases involved approximately 297.7 grams

of cocaine.)     The district court overruled Rangel’s objection and

sentenced him to 63 months’ imprisonment — the high end of the

range recommended by the PSR.

                                  II.

     Although the plea agreement contained a waiver of Rangel’s

right to appeal, the Government does not invoke that waiver;


                                   3
accordingly, we will not consider the waiver. The district court’s

legal interpretations of the Sentencing Guidelines are reviewed de

novo; its factual findings, only for clear error.                           E.g., United

States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998).                           A factual

finding is not clearly erroneous as long as it is plausible in the

light of the record as a whole.                      Id.    Obviously, the district

court’s determination of the drug quantity involved in an offense

is a factual finding.          Id.

                                              A.

      Rangel     first      contests    the        district    court’s    drug-quantity

calculation, challenging the PSR’s stating that each of the two

pre-arrest purchases involved approximately 297.7 grams of cocaine.

Rangel contends:         he admitted to the probation officer only that

the two purchases involved amounts of cocaine similar to the amount

he   possessed       when   arrested,     but       the    exact    quantity   of   those

purchases       is   uncertain.         As        discussed     supra,      although   at

sentencing, Rangel expanded upon his one word written objection to

this part of the PSR, he objected only to the pre-arrest purchases’

being included as relevant conduct.                   As noted, his objection was

based    on   his     claim    that     the       cocaine     was   for   personal     use

(discussed infra); he did not claim the quantity was inaccurate.

Accordingly, we review only for plain error.

      Under the more than well-established test for reversible plain

error,    the    error      must   be    clear       or    obvious    and    affect    the

                                              4
defendant’s substantial rights.                Id. at 830.      Even if these

requirements are satisfied, whether to correct the plain error is

within our discretion; ordinarily, we will not do so “unless the

error    seriously    affects      the    fairness,   integrity,     or   public

reputation of judicial proceedings”.             Id. (citations omitted).

       In determining drug quantities for sentencing purposes, the

district   court     may   rely    on    any   relevant   evidence    that   has

“sufficient indicia of reliability”. United States v. Posada-Rios,

158 F.3d 832, 878 (5th Cir. 1998).                 The PSR is generally of

sufficient reliability.           Alford, 142 F.3d at 831-32.         When, as

here, the defendant contests the facts presented in the PSR, he

bears the burden of demonstrating that the “information cannot be

relied   upon   because    it     is     materially   untrue,   inaccurate    or

unreliable”.    United States v. Angulo, 927 F.2d 202, 205 (5th Cir.

1991).    If, as here, the defendant presents no evidence to refute

the facts to which he objects, the facts contained in the PSR may

be adopted by the district court without further inquiry, as long

as they have an adequate evidentiary basis.               Alford, 142 F.3d at

832.

       As noted above, Rangel presented no evidence at sentencing to

refute the PSR’s stating that the two pre-arrest purchases each

involved approximately 297.7 grams of cocaine, nor did he deny

admitting that the purchases involved similar amounts of cocaine.

The district court was entitled to make a reasonable estimate of

                                          5
the drug quantity involved in those pre-arrest purchases; its

estimate was not limited to the amount seized at arrest.              See

U.S.S.G. § 2D1.1, comment. (n.12) (“Where there is no drug seizure

or the amount seized does not reflect the scale of the offense, the

court    shall    approximate   the       quantity   of   the   controlled

substance.”); United States v. Medina, 161 F.3d 867, 876 (5th Cir.

1998).

     Rangel admitted to the probation officer that each of the two

pre-arrest purchases involved amounts of cocaine similar to the

amount for which he was convicted, and he presented no evidence at

sentencing on those pre-arrest amounts.        Accordingly, the district

court did not clearly err, much less plainly err, in adopting the

PSR’s position that the two pre-arrest purchases involved a total

of approximately 595.4 grams of cocaine.

                                  B.

     Rangel next maintains:     even if the contested drug-quantity

finding for the pre-arrest purchases was accurate, the district

court erred in finding those purchases were relevant conduct

because the cocaine was purchased for his personal use.          Pursuant

to U.S.S.G. § 2D1.1(a)(3), the offense level for a drug trafficking

conviction is determined by the quantity of drugs involved in the

offense. E.g., United States v. Schorovsky, 202 F.3d 727, 729 (5th

Cir. 2000).      In making this drug-quantity finding, the district

court may consider drug quantities not specified in the count of


                                      6
conviction if they are part of the defendant’s relevant conduct.

U.S.S.G. § 2D1.1 comment. (n.12).

     Relevant conduct includes all of the defendant’s acts and

omissions “that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense”.

U.S.S.G. § 1B1.3(a)(1). Moreover, because an offense under § 2D1.1

is one for which multiple counts may be grouped, see U.S.S.G. §

3D1.2(d), relevant conduct includes “all acts and omissions [which

otherwise meet the relevant conduct definition that] were part of

the same course of conduct or common scheme or plan as the offense

of conviction”. U.S.S.G. § 1B1.3(a)(2). Rangel does not challenge

this.

                               1.

     Our court has not decided whether drugs obtained for personal

use may be considered in determining a Guidelines sentence for a

possession-with-intent-to-distribute conviction, but at least six

other circuits have held that the sentencing court cannot consider

personal-use drugs in that instance.   Jansen v. United States, 369

F.3d 237, 249 (3d Cir. 2004); United States v. Gill, 348 F.3d 147,

153 (6th Cir. 2003); United States v. Williams, 247 F.3d 353, 358

(2d Cir. 2001); United States v. Fraser, 243 F.3d 473, 475-76 (8th

Cir. 2001); United States v. Wyss, 147 F.3d 631, 632 (7th Cir.

1998); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.

                                7
1993).     On the other hand, at least five circuits have held that

personal-use    drugs     can   be    considered    relevant     conduct   for

sentencing when the defendant was convicted for participation in a

drug conspiracy.     United States v. Page, 232 F.3d 536, 542 (6th

Cir. 2000), cert. denied, 532 U.S. 1056 (2001); United States v.

Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000); United States v.

Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995); United States v.

Antonietti, 86 F.3d 206, 209-210 (11th Cir. 1996)(in conspiracy

case, purporting to reject Kipp’s reasoning that personal-use drugs

not relevant conduct for possession, but seeming to ignore the

relevant    distinction    in   the   case   law   between   conviction    for

conspiracy     and   conviction       for    possession   with    intent    to

distribute); United States v. Innamorati, 996 F.2d 456, 491 (1st

Cir.), cert. denied, 510 U.S. 1120 (1993).

     Relying on the former line of cases, Rangel claims:              because

he was convicted only for possession with intent to distribute, the

drugs he possessed for personal use should not be counted toward

his sentence.    As discussed below, we need not reach this issue;

the district court rejected Rangel’s objection at sentencing in

which his counsel asserted that the pre-arrest drug purchases were

for Rangel’s personal use.

                                       2.

     In considering this objection to the PSR, the district court

did not reject Rangel’s claim that personal-use drugs should not be

                                       8
considered   for     the    sentencing       amount.    Instead,     the   court

questioned   the     probation     officer      about   converting     Rangel’s

purported daily cocaine habit of 1/8 of an ounce into grams

(approximately 3.5) in order to determine what portion of the 893.1

grams for    which    the   PSR   recommended      Rangel   be   sentenced   was

arguably for personal use.        Rangel’s counsel also participated in

the discussion. After making these conversions, the district court

stated to Rangel’s counsel:        “I got the impression when you first

started, you were saying [Rangel] might have bought some, but it

was only for personal use.         Well, it seems to me that even if it

was a fourth of a pound, four ounces, that is still a lot to be

constituting personal use, especially in the six-month period

before his arrest”. The court then overruled Rangel’s objection to

the PSR, thereby rejecting the factual assertion that the pre-

arrest purchases were for personal use.            Again, this rejection is

a finding of fact, reviewed only for clear error.                E.g., Alford,

142 F.3d at 831.

     Although, as reflected above, the district court’s statement

about personal use is somewhat confusing as transcribed, it did not

clearly err in finding that the 595.4 grams of cocaine from the two

pre-arrest purchases were not for personal use.              Along this line,

under Guidelines § 2D1.1(a)(3), the next lowest sentencing range is

for quantities of less than 500 grams.            In order to lower Rangel’s

sentencing range, the district court would have had to find a


                                         9
significant amount of cocaine (nearly 400 grams) was for Rangel’s

personal use.

     In contrast, Rangel presented no evidence at sentencing to

support   his   purported   daily   1/8   of   an    ounce    cocaine   habit;

obviously, his counsel’s claims or estimations at sentencing do not

constitute evidence.    See United States v. Mayberry, 272 F.3d 945,

949 (7th Cir. 2001).    Needless to say, although Rangel did claim

this daily 1/8 of an ounce cocaine habit to the probation officer,

the district court “need not accept the defendant’s self-serving

account of his role in [a] drug organization”.               United States v.

Gadison, 8 F.3d 186, 197 (5th Cir. 1993).           When a defendant claims

drug quantities are not relevant conduct because they were intended

for personal use, the defendant bears the burden of production with

respect to his personal use, although the Government bears the

ultimate burden of persuasion with respect to the sentencing

amount.   Gill, 348 F.3d at 156; Asch, 207 F.3d at 1246.                Again,

Rangel made only a pre-sentencing self-serving statement to the

probation officer for PSR preparation purposes; he submitted no

evidence that the pre-arrest cocaine purchases were intended only

for personal use and not for distribution.             For example, Rangel

never presented evidence that the cocaine for personal use was

stored separately or packaged differently from the cocaine for

resale.




                                    10
     Rangel was sentenced on the basis of 893.1 grams of cocaine.

That finding was not clearly erroneous.

                              III.

     For the foregoing reasons, the sentence is

                                                     AFFIRMED.




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