     Case: 12-10768       Document: 00512252464         Page: 1     Date Filed: 05/23/2013




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

                                                                            FILED
                                                                           May 23, 2013
                                     No. 12-10768
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHRISTOPHER DEAN LAVER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-26-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Christopher Dean Laver pleaded guilty to one count of possession with
intent to distribute methamphetamine and received a sentence of 240 months
in prison, to be followed by a three-year term of supervised release. On appeal,
he argues for the first time that the district court erred in imposing a two-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(5)(A) based on the fact that the
methamphetamine was imported. Laver asserts that the evidence alleged in the
presentence report was insufficient to support the enhancement.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10768     Document: 00512252464       Page: 2   Date Filed: 05/23/2013

                                   No. 12-10768

      Because Laver did not object on these grounds in the district court, we
review his argument for plain error. See United States v. Garza-Lopez, 410 F.3d
268, 272 (5th Cir. 2005). To establish plain error, Laver must show a forfeited
error that is clear or obvious and affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Even if he makes such a showing, this
court has the discretion to correct the error but only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). Laver’s assertions before this court
constitute a challenge to the inferences to be drawn from the allegations in the
presentence report, which are in themselves factual findings. See United States
v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). “Questions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
Therefore, Laver cannot show that the district court plainly erred in imposing
the two-level enhancement.
      Additionally, Laver contends that his sentence violated his constitutional
rights to an indictment, a jury trial, and proof beyond a reasonable doubt
because facts essential to determining the sentence were not alleged in the
indictment, proved to a jury beyond a reasonable doubt, or admitted by him. The
facts of concern are the relevant drug quantity, his possession of a firearm, and
the fact that the methamphetamine was imported. Laver concedes that plain
error review applies and correctly acknowledges that his argument is foreclosed.
This court has repeatedly held that a sentencing judge may find by a
preponderance of the evidence all the facts necessary to determine the
sentencing guidelines range. See, e.g., United States v. Rhine, 583 F.3d 878, 891
n.50 (5th Cir. 2009); United States v. Stevens, 487 F.3d 232, 245-46 (5th Cir.
2007); United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006). Accordingly,
the judgment of the district court is AFFIRMED. The Government’s motion to
supplement the record on appeal is DENIED.

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