     Case: 16-11130      Document: 00514081692         Page: 1    Date Filed: 07/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 16-11130                                     FILED
                                  Summary Calendar                               July 20, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIC OVERSTREET,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-21-8


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Eric Overstreet contests the 240-month prison sentence imposed
following his conviction for conspiracy to possess with intent to distribute a
controlled substance. He first argues that the district court, at sentencing,
violated his rights of due process, to a fair trial, and to confront and cross
examine an adverse witness by relying on hearsay statements of a deceased
declarant in assessing several offense level enhancements.                 As Overstreet


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11130

concedes, this issue is foreclosed. See United States v. Beydoun, 469 F.3d 102,
108 (5th Cir. 2006).
      Next, Overstreet challenges the offense level enhancements under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm, under § 2D1.1(b)(2) for
making a credible threat to use violence, and under § 3B1.1(b) for his role as a
manager or supervisor. As to the enhancements under § 2D1.1(b)(1) and (2),
the district court’s factual findings were plausible in light of the record as a
whole, given the statements that Overstreet brandished a gun during a drug
transaction while accusing the declarant of trying to rob him. See United
States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015); United States
v. Medrano-Rodriguez, 606 F. App’x 759, 761-62 (5th Cir. 2015); § 2D1.1,
comment. (n.11(B)). The district court found the statements reliable in light of
testimony from a law enforcement agent at sentencing, and we defer to that
determination. See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
2008). Regarding the § 3B1.1(b) role enhancement, the district court’s factual
findings were likewise plausible because the record indicates that there were
five or more participants involved in the criminal activity; Overstreet paid the
declarant to assist him with drug transactions; the declarant’s role was to
follow Overstreet and run interference in the event of an encounter with law
enforcement; and, contrary to Overstreet’s assertions, the declarant did not act
as a confidential informant for law enforcement. See United States v. Bowen,
818 F.3d 179, 192 (5th Cir.), cert. denied, 136 S. Ct. 2477 (2016); § 3B1.1(b)
& comment. (n.1). Accordingly, the district court’s assessment of these three
offense-level enhancements was not clearly erroneous. See United States v.
Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).
      Finally,   Overstreet   argues   that   the   district   court   imposed   a
substantively unreasonable sentence by failing to give sufficient weight to



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certain aspects of his history and characteristics. Because the district court
imposed a within-guidelines sentence, it is presumptively reasonable. United
States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). At sentencing, the district
court considered the factors that Overstreet discusses in his appellate brief and
found that a within-guidelines sentence was appropriate. We perceive no
failure by the court to account for a factor that should have received significant
weight, no reliance on an improper factor, and no clear error of judgment in
balancing the factors. See id. Moreover, we decline to reweigh the 18 U.S.C.
§ 3553(a) sentencing factors or reexamine their relative import, nor will we
reverse the district court on the basis that we could reasonably conclude that
a different sentence was appropriate. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Rodriguez-Bernal, 783 F.3d 1002, 1008 (5th Cir.
2015). The district court did not abuse its sentencing discretion.
      AFFIRMED.




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