     Case: 12-30411       Document: 00512118289         Page: 1     Date Filed: 01/18/2013




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

                                                                            FILED
                                                                         January 18, 2013
                                     No. 12-30411
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

THOMAS G. WILLIAMS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-197-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Thomas G. Williams appeals the 240-month below-guidelines sentence he
received after he pleaded guilty to conspiracy to distribute and possess with
intent to distribute one kilogram of heroin and possessing with intent to
distribute one kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A); 846.
       Williams does not contest that he is accountable for up to 10 kilograms of
heroin and focuses instead on the additional tenth kilogram 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30411

extrapolated to compute his base offense level. “The district court's calculation
of the quantity of drugs involved in an offense is a factual determination.”
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal quotation
marks and citation omitted). When an amount of drugs seized “does not reflect
the scale of the offense, the court shall approximate the quantity of the
controlled substance.” § 2D1.1, comment. (n.12); see Betancourt, 422 F.3d 240,
246 (5th Cir. 2005). In approximating, the district court was free to consider
Williams’s relevant conduct and could extrapolate drug quantity from “any
information that has sufficient indicia of reliability to support its probable
accuracy . . . even hearsay.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir.
2006) (internal quotation marks and citation omitted). Whether the use of the
extrapolation method is appropriate, however, depends on the facts of the
particular case. See, e.g., Betancourt, 422 F.3d at 246-47.
      We need not reach whether the district court erred when it extrapolated
the additional one kilogram of heroin because the purported error was harmless.
The district court stated that it had considered Williams’s one prior conviction
for manslaughter at age 17 and otherwise lack of a long-term criminal record,
his heavy involvement in the longstanding heroin conspiracy, and the profit he
received and that a 240-month sentence would fulfill the 18 U.S.C. § 3553
factors. These comments evince that the district court had the 240-month
sentence in mind and would have imposed it, notwithstanding the purported
error. See United States v. Harris, 597 F.3d 242, 261 (5th Cir. 2010).
      Williams also argues that the district court erred when it determined drug
quantity without making an express fact finding. Because Williams did not
object to the district court’s failure to make express fact findings, his argument
is reviewed for plain error. See United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). Even if, for the sake of argument, the district court committed clear or
obvious error by failing to make express fact findings, given that Williams
received a sentence below the guidelines range and does not argue that an

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                                  No. 12-30411

adequate explanation would have change his sentence, he cannot show that the
purported error affected his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Mondragon-Santiago, 565 F.3d 357, 365
(5th Cir. 2009).
      Williams also argues that the district court plainly erred when it enhanced
his sentence under § 2D1.1 for firearms found at the residences of his co-
defendants. Whether § 2D1.1 applies is a factual issue. United States v. Zapata-
Lara, 615 F.3d 388, 390 (5th Cir. 2010). If an issue is factual and could have
been resolved in the district court on proper objection, there can never be plain
error. United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010). Even so,
the record supports the application of the enhancement. See § 1B1.3(a)(1)(B);
Zapata-Lara, 615 F.3d at 390.
      AFFIRMED.




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