     Case: 11-40588     Document: 00512040311         Page: 1     Date Filed: 11/01/2012




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

                                                                            FILED
                                                                         November 1, 2012
                                     No. 11-40588
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMES BAYLOUS WHITE, also known as Buck White,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-18-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        James Baylous White pleaded guilty to one count of conspiring to possess
pseudoephedrine, a List 1 chemical, with intent to manufacture a controlled
substance or with knowledge or reasonable cause to believe that the listed
chemical would be used for the unauthorized manufacture off a controlled
substance. He appeals the statutory maximum sentence of 240 months of
imprisonment imposed by the district court.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40588

      White first argues that the district court erred procedurally by treating the
guideline sentence of 240 months of imprisonment as mandatory. He concedes
that he failed to preserve this issue by objecting in the district court, but he
argues that this court’s review should be for abuse of discretion because the error
resulted in a sentence that was in violation of law and because preservation
rules should be relaxed in the sentencing context.
      A district court commits procedural error by, inter alia, “treating the
Guidelines as mandatory.” Gall v. United States, 552 U.S. 38, 51 (2007). White’s
failure to raise the issue in the district court results in plain error review. See
United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). To establish
plain error, White must demonstrate an error that is clear or obvious and that
affects substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If such a showing is made, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id. “To show that an error affects a defendant’s substantial
rights, the defendant must show that it affected the outcome in the district
court.” United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir. 2009).
We have not followed other circuits in relaxing the showing required on the
substantial rights prong in the sentencing context. Id.
      Here, because the statutory maximum sentence was less than the
minimum of the guideline range, the statutorily authorized maximum sentence
was the guideline sentence. See U.S.S.G. § 5G1.1(a). Assuming arguendo that
the district court’s statement that White’s sentence was “fixed” under the
guidelines at 240 months establishes that the district court erred procedurally
by treating the guideline sentence as mandatory, White fails to establish that
the error affected his substantial rights, as he has pointed to nothing of record
to show that the district court would have imposed a lower sentence but for the
procedural error. See United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012).



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                                   No. 11-40588

He is therefore not entitled to relief under the plain error standard. See Puckett,
556 U.S. at 135; Mondragon-Santiago, 564 F.3d at 365.
      White next contends that the district court erred in imposing a two-level
enhancement under § 2D1.11(b)(1) for possession of a dangerous weapon. He
argues that the Government did not meet its burden to establish a sufficient
temporal connection between the firearm and drug trafficking.              In the
alternative, he asserts that he established that it was clearly improbable that
the .22 caliber rifle found in the van he was driving was connected to drug
trafficking.
      “That the firearms possessed were not the usual firearms or tools of the
trade, does not render the court’s findings clearly erroneous.” United States v.
Eastland, 989 F.2d 760, 770 (5th Cir. 1993). Here, although there was no
pseudoephedrine in the van at the time the .22 caliber rifle was found, receipts
indicating purchases of pseudoephedrine were found in the van, along with a
number        of   items   suggestive   of   methamphetamine       manufacture.
Pseudoephedrine is an immediate precursor to methamphetamine. United
States v. Jessup, 305 F.3d 300, 304 (5th Cir. 2002). In view of the foregoing, the
Government adequately established the required temporal and spatial
relationships between White, the weapon, and the drug trafficking activity. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764-65 (5th Cir. 2008). The
district court’s decision to apply the two-level enhancement of § 2D1.11(b)(1) was
not clearly erroneous. See United States v. Jacquinot, 258 F.3d 423, 430 (5th
Cir. 2001).
      White also contends that the district court erred in imposing a three-level
enhancement for his role in the offense. The enhancement applies “[i]f the
defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive.”
§ 3B1.1(b).



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      Instructing others to obtain precursors for the manufacture of
methamphetamine is evidence of a managerial or supervisory role. See United
States v. Lewis, 476 F.3d 369, 390 (5th Cir. 2007); United States v. Mesner, 377
F.3d 849, 851 (8th Cir. 2004). The district court’s determination that White
supervised co-conspirator Bertha Mae Russell in obtaining pseudoephedrine pills
and that the criminal activity involved five or more participants is adequately
supported by the record and is not clearly erroneous. See Lewis, 476 F.3d at 390.
      AFFIRMED.




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