     Case: 17-30559      Document: 00514446080         Page: 1    Date Filed: 04/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-30559
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        April 25, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

LARRY MOORE ALSTON, JR., also known as Boosie,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CR-125-2


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Larry Moore Alston, Jr., pled guilty, pursuant to a plea agreement, to
one count of conspiring to distribute and to possess with the intent to distribute
a mixture and substance containing a detectable amount of cocaine and a
mixture and substance containing a detectable amount of methamphetamine.
He received a 225-month prison sentence, which he now challenges on appeal.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30559        Document: 00514446080     Page: 2    Date Filed: 04/25/2018


                                     No. 17-30559

         Alston asserts that the district court violated the Confrontation Clause
by relying on laboratory reports to assess the purity of the methamphetamine
attributable to him at sentencing, and cites Crawford v. Washington, 541 U.S.
36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Alston
did not raise this argument in the district court. Regardless, he has shown no
error, plain or otherwise, because the Confrontation Clause does not apply at
sentencing. See United States v. Ellis, 720 F.3d 220, 228 (5th Cir. 2013).
         To the extent Alston argues that, based on all the evidence amassed
during discovery, plea negotiations, and rearraignment, his offense level
should have been calculated based on a finding that the offense involved a
mixture containing methamphetamine and not actual methamphetamine, he
has not demonstrated that the district court clearly erred. See United States
v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012). Where a defendant pleads
guilty     to   an   offense   involving   a   mixture   or   substance   containing
methamphetamine, the “offense level [is] determined by the weight of the pure
methamphetamine in the mixture or substance if doing so would result in a
higher offense level.” United States v. Molina, 469 F.3d 408, 414 (5th Cir. 2006)
(citing U.S.S.G. § 2D1.1(c) n.B). The presentence report’s reliable, unrebutted
findings as to the purity of the methamphetamine attributable to Alston, which
were based on laboratory reports provided by the Government, were sufficient
to support the court’s offense level determination. See United States v. Koss,
812 F.3d 460, 469 (5th Cir. 2016).
         The district court’s judgment is AFFIRMED.




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