     Case: 16-11545         Document: 00514298596        Page: 1    Date Filed: 01/08/2018




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

                                        No. 16-11545                             FILED
                                                                           January 8, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                 Plaintiff–Appellee,

v.

TIMOTHY ERIC NIMERFROH, also known as “Kaos,”

                 Defendant–Appellant.




                     Appeal from the United States District Court
                          for the Northern District of Texas
                                USDC No. 4:16-CR-121


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Timothy Eric Nimerfroh pleaded guilty to conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine. He appeals his
sentence, arguing that the district court clearly erred by imposing several two-
level enhancements to his sentence pursuant to United States Sentencing
Guideline (“U.S.S.G.”) 1 § 3B1.1(c) for Nimerfroh’s leadership role in the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   Nimerfroh was sentenced pursuant to the 2015 version of the Sentencing Guidelines.
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offense, U.S.S.G. § 2D1.1(b)(12) for maintaining a premise for the purpose of
distributing methamphetamine, and U.S.S.G. § 2D1.1(b)(5) for the importation
of methamphetamine. For the reasons given below, we AFFIRM.
                             I. BACKGROUND
      On May 18, 2016, the Government charged Nimerfroh, along with
several other individuals, including Nikie Nicole Frye and Ashleigh Lyn Allen,
with conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B). On June 2, 2016, Nimerfroh pleaded guilty to these charges. The
presentence report (“PSR”) applied the 2015 Guidelines Manual and set
Nimerfroh’s base offense level at 32. Nimerfroh received a two-level
enhancement pursuant to § 3B1.1(c) for his role as organizer, leader, manager,
or supervisor in the criminal activity. In support of this enhancement, the PSR
stated, “Frye and Allen assisted [Nimerfroh] in the distribution of
methamphetamine during Frye’s romantic relationship with [Nimerfroh].
[Nimerfroh] paid Allen with user amounts of methamphetamine for her
assistance.” The PSR assigned Nimerfroh a two-level enhancement pursuant
to § 2D1.1(b)(12) for maintaining a premise for the purpose of manufacturing
or distributing a controlled substance. The PSR also added a two-level
enhancement     pursuant     to    § 2D1.1(b)(5)     for     the   importation     of
methamphetamine. The PSR stated this enhancement was justified because
“[t]he defendant admitted that prior to his arrest, he was dealing with the
‘cartel’ and they distributed in kilogram quantities.” The PSR made other
adjustments not relevant to this appeal and ultimately set Nimerfroh’s total
offense level at 39. This offense level, combined with Nimerfroh’s criminal
history category of VI, produced a Sentencing Guidelines range of 360 to life.
But because of the statutorily authorized maximum sentence, Nimerfroh’s
guidelines range became 360 to 480 months.
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      Nimerfroh objected, inter alia, to the enhancements applied in the PSR
for leading or organizing the criminal activity, maintaining a premise, and
importing methamphetamine. He raised these objections again at his
sentencing hearing. The district court overruled his objections. As to the
leadership enhancement, the court concluded that the PSR contained facts
indicating Frye and Allen had assisted Nimerfroh in his drug-trafficking
activities. The court stated as to the premises enhancement that, “I don’t think
there’s any question . . . the defendant was using those premises for his drug-
trafficking activities, and they were premises that he had control over because
he was renting them, so I’m going to overrule that objection.” Finally, as to the
importation enhancement, the court was satisfied there was sufficient evidence
to support a finding that the drugs came from Mexico. The court reasoned, “I
think it’s common knowledge that when reference is made in this part of the
world to a cartel, they are talking about the drug cartels in Mexico.” Based off
this, the court found by a preponderance of the evidence that Nimerfroh dealt
drugs that were imported from Mexico.
      The district court concluded that Nimerfroh’s total offense level was 39
and that his Sentencing Guidelines imprisonment range was 360 to life.
However, because Nimerfroh was charged with possession with intent to
distribute 50 grams or more of a mixture containing a detectable amount of
methamphetamine, which carries a statutory maximum penalty of 480
months, see 21 U.S.C. § 841(b)(1)(B)(viii), the district court sentenced
Nimerfroh based on a guidelines range of 360 to 480 months’ imprisonment.
The court ultimately sentenced Nimerfroh to 360 months of imprisonment and
five years of supervised release. Nimerfroh timely appealed.
                              II. DISCUSSION
      The district court had jurisdiction under 18 U.S.C. § 3231, and we have
appellate jurisdiction under 18 U.S.C. § 3742(a). On appeal, Nimerfroh
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challenges his sentence, arguing that the district court erroneously applied
three enhancements to his base offense level.
A.    The Leadership Enhancement
      Nimerfroh argues that the district court erred in imposing a two-level
enhancement for his leader or organizer role in the criminal activity pursuant
to § 3B1.1(c). Whether the defendant exercised an aggravating role pursuant
to § 3B1.1(c) is a finding of fact reviewed for clear error. United States v.
Guzman-Reyes, 853 F.3d 260, 265 (5th Cir. 2017). “A defendant’s role in the
criminal activity for the purpose of applying [§] 3B1.1 may be deduced
inferentially from available facts.” Id. (quoting United States v. Ayala, 47 F.3d
688, 690 (5th Cir. 1995)). “A factual finding on a sentencing factor is not clearly
erroneous so ‘long as it is plausible in light of the record read as a whole.’”
United States v. Alaniz, 726 F.3d 586, 622 (5th Cir. 2013) (quoting United
States v. Morris, 46 F.3d 410, 419 (5th Cir. 1995)).
      Section 3B1.1(c) provides for a two-level enhancement if “the defendant
was an organizer, leader, manager, or supervisor in any criminal activity.”
U.S.S.G. § 3B1.1(c). “The application notes to section 3B1.1 require that the
defendant either (1) exercised control over another participant in the offense,
or (2) ‘exercised management responsibility over the property, assets, or
activities of a criminal organization.’” United States v. Delgado, 672 F.3d 320,
345 (5th Cir. 2012) (en banc) (quoting U.S.S.G. § 3B1.1 cmt. n.2).
      Here, the district court determined that the PSR contained facts
supporting the leadership enhancement because it indicated that Frye and
Allen had assisted Nimerfroh. Indeed, the PSR described their conduct as
follows:
      Frye assisted Nimerfroh in the distribution of methamphetamine,
      including weighing and packaging methamphetamine, and
      facilitating transactions between Nimerfroh and at least two
      customers. Allen was identified as a customer of Frye, and she
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                                  No. 16-11545
      began assisting Frye and Nimerfroh in the distribution of
      methamphetamine. Allen received personal use amounts of
      methamphetamine from Nimerfroh, as payment for her
      assistance.

Nimerfroh presented no specific factual challenges to the PSR. In light of the
evidence and the record, the district court’s determination that Nimerfroh
managed Frye and Allen was plausible. Accordingly, the district court did not
err by assessing a leadership role enhancement under § 3B1.1(c). See Guzman-
Reyes, 853 F.3d at 265–66.
B.    The Premises Enhancement
      Nimerfroh argues that the district court erred in applying the two-level
enhancement pursuant to § 2D1.1(b)(12) based on a finding that he maintained
a premises—hotel rooms—for the purpose of distributing methamphetamine.
“A district court’s application of § 2D1.1(b)(12) is a factual finding reviewed for
clear error.” Guzman-Reyes, 853 F.3d at 263 (quoting United States v. Haines,
803 F.3d 713, 744 (5th Cir. 2015)). This Court must ask whether the district
court made a plausible determination “in light of the record read as a whole.”
Id. (quoting United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005)).
      Section 2D1.1(b)(12) provides that “[i]f the defendant maintained a
premises for the purpose of manufacturing or distributing a controlled
substance, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(12). In determining
whether a defendant “maintained a premises,” the advisory notes suggest that
courts should consider factors such as “whether the defendant held a
possessory interest in (e.g., owned or rented) the premises” and “the extent to
which the defendant controlled access to, or activities at, the premises.”
U.S.S.G. § 2D1.1 cmt. n.17. “Manufacturing or distributing a controlled
substance need not be the sole purpose for which the premises was maintained,



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but must be one of the defendant’s primary or principal uses for the premises,
rather than one of the defendant’s incidental or collateral uses . . . .” Id.
      The district court found the enhancement warranted because Nimerfroh
used the premises for drug-trafficking activities, and controlled the premises
since he was renting them. Nimerfroh argues that the primary purpose of the
hotel rooms was as his residence, not to distribute methamphetamine.
      We rejected a similar argument in United States v. Ramos, 509 F. App’x
317 (5th Cir. 2013) (per curiam) (unpublished). There, the defendant
challenged an application of the premises enhancement on the ground that his
use of the premises—his home—for the sale of drugs was incidental to his
primary purpose of using it as a residence. Id. at 318. This Court concluded
that the defendant’s argument was insufficient to show that the district
“court’s fact-finding and inferences from the record that one of his primary uses
of the home was to store narcotics for distribution were unreasonable or
implausible in light of the record as a whole.” Id.
      Here, Nimerfroh did not dispute that he sold drugs from the premises.
Instead, he simply argued that he also lived in the rooms. In light of the record,
the district court plausibly determined that one of Nimerfroh’s primary uses
for the hotel rooms was for distributing methamphetamine. Accordingly, the
district court did not clearly err in applying the premises enhancement. See id.
C.    The Importation Enhancement
      Nimerfroh also argues that the district court erred in imposing a two-
level enhancement pursuant to § 2D1.1(b)(5) because there was insufficient
evidence to show that the methamphetamine was imported. We review the
district court’s factual determination that an offense involved the importation
of methamphetamine for clear error. United States v. Serfass, 684 F.3d 548,
550 (5th Cir. 2012). “There is no clear error where the district court’s finding
is plausible in light of the record as a whole.” United States v. Rico, 864 F.3d
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381, 383 (5th Cir. 2017) (citing United States v. Juarez-Duarte, 513 F.3d 204,
208 (5th Cir. 2008) (per curiam)). “The government must prove the facts
underlying a sentencing enhancement by a preponderance of the evidence.”
Serfass, 684 F.3d at 553 (citing United States v. Rodriguez, 630 F.3d 377, 380
(5th Cir. 2011)).
      Section 2D1.1(b)(5) provides for a two-level enhancement if “the offense
involved the importation of amphetamine or methamphetamine” and the
defendant does not receive a mitigating role adjustment. U.S.S.G.
§ 2D1.1(b)(5). The district court reasoned this enhancement was appropriate
because, as the PSR noted, Nimerfroh had made statements that he was
dealing with the “cartel.” The district court applied the enhancement, stating
that it could find by a preponderance of the evidence that the drugs were
imported from Mexico because it is “common knowledge that when reference
is made in this part of the world to a cartel, they are talking about the drug
cartels in Mexico.”
      This Court must determine whether, without more, the mere reference
to a cartel is sufficient to prove by a preponderance of the evidence that
Nimerfroh was dealing with imported methamphetamine. We hold it is not.
      We have previously found the importation enhancement warranted
where the PSR clearly stated that the drugs at issue were imported from
Mexico. See, e.g., United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014);
United States v. Moreno, 598 F. App’x 261, 263 (5th Cir. 2015); United States
v. Vasquez, 596 F. App’x 260, 263 (5th Cir. 2014). Here, however, the PSR lacks
any discussion of importation aside from Nimerfroh’s mention that he was
dealing with the “cartel.” Even if his use of the word “cartel” could be read to
mean a Mexican cartel, such reading says nothing about where the cartel’s
activities took place nor does it speak to where the methamphetamine came
from and whether it was imported. A Mexican cartel could have manufactured
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the methamphetamine within the United States and then sold it to
Nimerfroh—no importation required. Therefore, considering the record as a
whole, there is insufficient evidence to infer that the methamphetamine
Nimerfroh possessed had been imported from Mexico. Accordingly, the district
court clearly erred by applying the § 2D1.1(b)(5) enhancement.
      Nevertheless, not every procedural error warrants reversal. See United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). Here, any error
by the district court was harmless because Nimerfroh would have received the
same guidelines range of 360 months to life imprisonment (adjusted to 360
months to 480 months because of the statutory maximum), even without the
importation enhancement. See United States v. Garcia-Gonzalez, 714 F.3d 306,
315 (5th Cir. 2013); United States v. Ramos, 71 F.3d 1150, 1158 n.27 (5th Cir.
1995). Accordingly, we conclude no reversible error was committed.
                            III. CONCLUSION
      For the foregoing reasons, Nimerfroh’s sentence is AFFIRMED.




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