                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                        F I L E D
                        IN THE UNITED STATES COURT OF APPEALS
                                                                                           June 5, 2003
                                 FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                    ________________________                                Clerk
                                          No. 02-10635
                                        Summary Calendar
                                    ________________________


UNITED STATES OF AMERICA,

                                                                                   Plaintiff-Appellee,

versus

JEFF HENDRICKS; DAVID OVERBEY,

                                                                              Defendants-Appellants.

                     ______________________________________________
                          Appeal from the United States District Court
                               for the Northern District of Texas
                                 USDC No. 3:01-CR-296-3-H
                     ______________________________________________

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

         Jeff Hendricks (“Hendricks”) was convicted by a jury of conspiring to possess with the intent

to distribute more than 500 grams of methamphetamine (“Count 1”) and conspiring to possess a List

I chemical knowing it would be used to manufacture methamphetamine (“Count 2”). David Overbey

(“Overbey”) was only convicted on Count 1. Hendricks and Overbey appeal their respective

convictions.

                                   I. STANDARD OF REVIEW

         *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        When defendants argue that insufficient evidence existed to support their convictions, we

review for plain error if the defendants failed to move for an acquittal. United States v. McCarty, 36

F.3d 1349, 1358 (5th Cir. 1994). When defendants complain of errors at trial (e.g, improper jury

instructions, improper remarks by the prosecutor, or a deficient jury verdict form), we review for

plain error if the defendants failed to object to the alleged errors at trial. United States v. Olano, 507

U.S. 725, 731-37 (1993). This Court may only notice and correct forfeited errors that are plain and

affect substantial rights. Id. at 732.

                                          II. DISCUSSION

        First, Hendricks argues that there was insufficient evidence at trial to support his conviction

on Count 1. Specifically, he asserts that the evidence is circumstantial and does not show any intent

on his part to become part of the conspiracy or any voluntary acts in furtherance of the conspiracy.



        There is sufficient evidence to support Hendricks’ convictions. Hendricks performed services

and provided material support for the production of methamphetamines for at least one year. In

addition, the testimony of the DEA chemist and others indicated that at least 500 grams of

methamphetamines, but likely far more, were involved in the conspiracy. On the basis of this

evidence, we find no plain error by the district court.

        Second, Hendricks argues that the evidence was insufficient to support his conviction on

Count 2. Specifically, he asserts that he did not go into Sam’s Club to purchase pseudophedrine and

that he did not know what was being purchased. The record indicates that he waited in the car while

another person went into Sam’s Club to purchase pseudophedrine. However, the record also indicates

that Hendricks transported and personally handled the pseudophedrine. On the basis of this evidence,

we find no plain error by the district court.
        Third, Hendricks and Overbey argue that the district court’s responses to questions from the

jury amounted to a directed verdict. Hendricks and Overbey failed to object to the district court’s

responses at trial, thus we review for plain error. Taking the jury instructions as a whole and viewing

the evidence supporting the convictions, we find no plain error by the district court.

        Fourth, Overbey argues that the prosecutor improperly expressed his opinion on the merits

of the case and improperly suggested that the Government only prosecutes the guilty. United States

v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972) (holding that it is reversible error for a prosecutor

to express his personal opinion on the merits of the case or to imply that the Government only

prosecutes the guilty). Overbey failed to object to the prosecutor’s remarks at trial, thus we review

for plain error. The district court explained to the jury that remarks made by counsel are not evidence.

This explanation had an obvious impact: the jury did not convict Overbey on Count 2. Furthermore,

there was substantial evidence supporting Overbey’s conviction. On the basis of this evidence, we find

no plain error by the district court.

        Fifth, Overbey argues that the jury verdict form is deficient because it only asks whether

Overbey was responsible for 500 grams of methamphetamine, not whether he intended to distribute

that amount of methamphetamine. Overbey failed to object to the prosecutor’s remarks at trial, thus

we review for plain error. We assess whether jury instructions as a whole present a correct statement

of the law. United States v. Young, 282 F.3d 349, 353 (5th Cir. 2002). Even if the verdict form is

deficient, the jury instructions as a whole require the jury to find that Overbey “agreed to possess with

the intent to distribute, and agreed to distribute” a mixture and substance containing a detectable

amount of methamphetamine. On the basis o f this evidence, we find no plain error by the district

court, and the jury’s verdict satisfied the requirement that the jury must find beyond a reasonable

doubt any facts increasing the penalty for a crime beyond the prescribed statutory maximum.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

        Sixth, Hendricks argues that he was entitled to a downward adjustment under U.S.S.G. §

3B1.2 for being a minor participant. The district court's determination that Hendricks was not a minor

participant is a factual finding that we review for clear error. United States v. Virgen-Moreno, 265

F.3d 276, 296 (5th Cir. 2001).

        A minor-role adjustment is generally appropriate only when the “defendant was substantially

less culpable than the average participant.” United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995)

(citation omitted). A review of the record reveals that Hendricks was not substantially less culpable

than the other participants involved in the conspiracy. Hendricks acted as a drug courier, obtained

manufacturing supplies, moved manufacturing equipment, and purchased a pager and a phone for the

conspiracy's leader. Thus, the district court did not clearly err when it refused to award him a

downward adjustment for being a minor participant.

        Seventh, Hendricks and Overbey challenge the finding in their presentence reports (“PSR”)

that they reasonably foresaw that 18 kilograms of methamphetamine was attributable to the

conspiracy. Hendricks and Overbey also challenge their sentences based on that drug quantity

determination. The district court's determination of the quantity of drugs used to establish a

defendant's base offense level is a factual finding reviewed for clear error. United States v. Johnston,

127 F.3d 380, 403 (5th Cir. 1997).

        In making factual determinations at sentencing, the district court may consider any

information that has “sufficient indicia of reliability to support its probable accuracy.” United States

v. Vital, 68 F.3d 114, 120 (5th Cir. 1995) (quoting U.S.S.G. § 6A1.3 comment.). A PSR generally

bears sufficient indicia of reliability to be considered as evidence at sentencing. Id. A defendant

challenging the findings in the PSR has the burden of demonstrating that the information therein is
“materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.

1991).

         Hendricks and Overbey's PSRs contain a discrepancy that indicates some of the information

contained therein is inaccurate. However, the factual errors in the PSRs are harmless because the

testimony at trial supports the district court's determination that Hendricks and Overbey's base offense

levels were correctly calculated.

         Section 2D1.1(c)(1) of the Sentencing Guidelines provides for a base offense level of 38 when

an offense involves “15 KG or more of Methamphetamine, or 1.5 KG or more of Methamphetamine

(actual), or 1.5 KG or more of ‘Ice’.” A DEA chemist analyzed the methamphetamine and found it

to be d-methamphetamine hydrochloride. He testified that “D is an isomer” that only exists when

purity exceeds 80 percent. “Ice”, as defined by the guidelines, “means a mixture or substance

containing d-methamphetamine hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1(c) note C.

The DEA chemist further testified that the conspiracy realistically involved at least four kilograms of

actual methamphetamine or “ice”. Thus, it was not clear error for the district court to sentence

Hendricks and Overbey according to U.S.S.G. § 2D1.1(c)(1).

         Eighth, Overbey argues that a three-point increase to his base offense level under U.S.S.G.

§ 2D1.1(b)(5)(B) was improperly awarded. Because Overbey failed to raise this issue below, we now

review for plain error. U.S.S.G. § 2D1.1(b)(5)(B) calls for a three-po int increase if an offense

involved the manufact ure of methamphetamine and created a substantial risk of harm to the

environment or to human life. Considering Overbey's underlying offense conduct, as per U.S.S.G. §

1B1.3(a)(1)(B), it is clear that U.S.S.G. § 2D1.1(b)(5)(B) was properly applied.

                                        III. CONCLUSION

         Because Hendricks and Overbey failed to show that reversible error was committed as to
either their convictions or their sentences, the judgment of the district court is AFFIRMED.
