     Case: 17-11235       Document: 00514630474         Page: 1     Date Filed: 09/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 17-11235                   United States Court of Appeals

                                   Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                   September 6, 2018

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                  Plaintiff - Appellee

v.

CLYDE RETIZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-69-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Clyde Retiz pleaded guilty to conspiracy to possess, with intent to
distribute, a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 846.
The district court overruled Retiz’ objection to the drug-quantity calculation in
the presentence investigation report (PSR) and sentenced him within the
Sentencing      Guidelines      advisory     sentencing      range       to      140         months’


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-11235

imprisonment. As he did in district court, Retiz maintains the court erred
when it determined the scale of his offense for the purpose of the drug-quantity
calculation.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
      Accordingly, because the drug-quantity determination is a factual
finding, it is reviewed only for clear error. United States v. Rodriguez-Lopez,
756 F.3d 422, 434–35 (5th Cir. 2014). “A factual finding is not clearly erroneous
as long as it is plausible in light of the record as a whole.” United States v.
Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (internal quotation marks and citation
omitted).
      The district court adopted the PSR and its recitation of Retiz’ drug-
related relevant conduct. This included, inter alia, his admission that he
personally distributed one ounce of methamphetamine per week for a year and
assisted his cousin in distributing an additional ounce per week for a year, in
addition to possessing and distributing cocaine and marijuana on other
occasions.     On the basis of those undisputed facts, the court implicitly
determined the limited amounts of drugs seized did not reflect the scale of
Retiz’ conspiracy offense, and, therefore, approximated the drug-quantity for



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                                  No. 17-11235

sentencing purposes by aggregating the amounts reflected in the PSR. The
court’s drug-quantity calculation was consistent with the record, the
Guidelines, and our precedent. See U.S.S.G. §§ 2D1.1 cmt. n.5 (“Where there
is no drug seizure or the amount seized does not reflect the scale of the offense,
the court shall approximate the quantity of the controlled substance.”); 2D1.1
cmt. n.7 (“Where there are multiple transactions or multiple drug types, the
quantities of drugs are to be added.”); Rhine, 583 F.3d at 885; United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Retiz fails to cite persuasive
authority that aggregating the drug amounts was not required or reasonable.
      AFFIRMED.




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