     Case: 17-10961      Document: 00514826608         Page: 1    Date Filed: 02/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 17-10961                           FILED
                                  Summary Calendar                   February 7, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SCOTT EDWARD GRIGSBY, also known as Skinny Pup,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:17-CR-72-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Scott Edward Grigsby appeals his conviction for conspiracy to possess
with intent to distribute a controlled substance and resulting 240-month
above-guidelines term of imprisonment. Because Grigsby raises his arguments
for the first time on appeal, our review is for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). To prevail on plain error review, Grigsby
must show a forfeited error that is clear or obvious and that affects his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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substantial rights. Id. at 135. If Grigsby makes such a showing, this court has
the discretion to correct the error, but only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks, brackets, and citation omitted).
      First, Grigsby argues that the district court erred in failing to comply
with Federal Rule of Criminal Procedure 11(b)(1)(H), which requires the
district court to advise a defendant, before entering a plea of guilty, of “any
maximum possible penalty, including imprisonment, fine, and the term of
supervised release.” He contends that the district court did not advise him at
rearraignment about the maximum term of supervised release. “[A] defendant
who seeks reversal of his conviction after a guilty plea, on the ground that the
district court committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Grigsby has not shown
plain error because he has not established a reasonable probability, that but
for the district court’s failure to advise him about the maximum term of
supervised release, he would not have pleaded guilty. See id.
      Next, Grigsby challenges the district court’s application of the two-level
enhancements under U.S.S.G § 2D1.1(b)(5) and § 2D1.1(b)(12). Concerning the
§ 2D1.1(b)(5) enhancement, the presentence report (PSR) stated that “[a]gents
determined at least one of Grigsby’s [sources of supply] imported the
methamphetamine distributed to Grigsby from Mexico.” Grigsby argues that
“[t]his is not enough information to provide sufficient indicia of reliability such
that it could be considered” by the district court.         Generally, a PSR has
sufficient indicia of reliability and may be adopted without further inquiry if it
has an adequate evidentiary basis and the defendant does not rebut the facts
therein or otherwise show that the PSR is unreliable. United States v. Harris,



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702 F.3d 226, 230 (5th Cir. 2012). If a defendant objects to the reliability of
the PSR, he “must offer rebuttal evidence demonstrating that those facts are
materially untrue, inaccurate or unreliable.” Id. (internal quotation marks
and citation omitted). Because Grigsby did not offer any evidence to rebut the
information in the PSR or demonstrate its unreliability, see id., he has not
shown that the district court committed a clear or obvious error in applying
the § 2D1.1(b)(5) enhancement, see Puckett, 556 U.S. at 135.
      Turning to the § 2D1.1(b)(12) enhancement, the PSR noted that Grigsby
used two residences to store and distribute methamphetamine.           Grigsby
asserts that the enhancement is inapplicable because there was no evidence
that he had a possessory interest in either residence. “Although [Grigsby’s]
name may not have been on the formal lease agreement or ownership
documents,” we have clearly indicated that “it would defy reason for a drug
dealer to be able to evade application of the enhancement by the simple
expedient of maintaining his stash house under someone else’s name.” United
States v. Guzman-Reyes, 853 F.3d 260, 265 (5th Cir. 2017) (internal quotation
marks and citation omitted). Grigsby has not demonstrated that the district
court committed a clear or obvious error in applying the § 2D1.1(b)(12)
enhancement. See Puckett, 556 U.S. at 135.
      Grigsby also contends that the district court erred in considering the
PSR’s bare arrest record for his dismissed Oklahoma aggravated assault
charge as a ground for the upward variance. A “bare arrest record” in this
context describes the mere fact of an arrest without corresponding information
about the underlying facts or circumstances regarding the defendant’s conduct
that led to the arrest. Harris, 702 F.3d at 229. The PSR’s description of
Grigsby’s aggravated assault charge was not “bare,” as it included an
explanation of the nature of the assault, his codefendant’s involvement, the



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weapons that were used, the victim’s injuries, and an explanation regarding
why the case was dismissed. See id. Also, although Grigsby challenges certain
information in the PSR as unreliable because it was based on court information
rather than an offense report, he has not offered any evidence to rebut the
PSR’s information or demonstrate its unreliability and therefore has not shown
plain error. See Harris, 702 F.3d at 230; Puckett, 556 U.S. at 135.
      Similarly, Grigsby has shown no plain error as to his argument that the
district court erred by considering eight Texas arrests that did not result in
convictions and by double counting those offenses because the drug quantities
in them were also included in the PSR’s drug quantity. See id. The record does
not indicate that the district court took these arrests into consideration or
double counted those arrests in imposing an upward variance.
      Finally, Grigsby argues that the district court erred by imposing the
special condition of supervised release requiring him to participate in mental
health treatment as directed by the probation officer. He insists that this
condition “is an improper delegation of the district court’s sentencing authority
to the probation officer.” Although the sentencing court “may properly delegate
to a probation officer decisions as to the details of a condition of supervised
release,” it may not give the probation officer “authority to decide whether a
defendant will participate in a treatment program.” United States v. Franklin,
838 F.3d 564, 568 (5th Cir. 2016) (internal quotation marks and citation
omitted). However, the special condition in Grigsby’s case does not include the
improper delegation language that we have deemed problematic. Id. at 566,
568. Grigsby is unable to show that requiring him to participate in mental
health treatment as directed by the probation officer constitutes a clear or
obvious error. See Puckett, 556 U.S. at 135.
      The judgment of the district court is AFFIRMED.



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