     Case: 16-10101       Document: 00513779684         Page: 1     Date Filed: 12/01/2016




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

                                     No. 16-10101                                   FILED
                                   Summary Calendar                          December 1, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WINFRED MORGAN TRAMMEL,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:15-CR-151-22


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Pursuant to a jury trial, Winfred Morgan Trammel was convicted of one
count of conspiracy to possess, with intent to distribute, 50 grams or more of a
substance containing methamphetamine. The district court sentenced him,
inter alia, within the advisory Sentencing Guidelines range to 262 months in
prison. Trammel challenges both his conviction and sentence.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-10101

      Regarding his conviction, he asserts, on two bases, that the evidence was
insufficient to support his conviction. For the following reasons, a rational
juror could have found him guilty.
      Although Trammel maintains he was merely in a buyer-seller
relationship with his purported co-conspirators, the evidence at trial
established he was a repeat customer of relatively large quantities of
methamphetamine, which indicates participation in a conspiracy. See United
States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993). Moreover, Trammel was
fronted drugs by other individuals named in the indictment, demonstrating a
strong level of trust and a mutually dependent relationship. See United States
v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998).
      Trammel also contends the evidence was insufficient because the
Government proved the existence of a conspiracy different from the one alleged
in the indictment. Contrary to his assertions, the evidence at trial proved the
allegations in the indictment with respect to the time period, the identity of
the participants, the nature and scope of the offense, and the location of the
events taking place within the conspiracy. See United States v. Thomas, 12
F.3d 1350, 1357 (5th Cir. 1994).
      In addition, Trammel challenges his conviction by claiming the court
erred in admitting text messages sent to him by a co-conspirator.              He
maintains the messages constituted inadmissible hearsay evidence and that
their introduction violated the Confrontation Clause because the co-
conspirator did not testify. Evidentiary rulings are reviewed for an abuse of
discretion. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). The
messages fall within an exception to the hearsay rule because they were
statements made “during and in furtherance of the conspiracy” by one of
Trammel’s co-conspirators. Fed. R. Evid. 801(d)(2)(E); see United States v.



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                                  No. 16-10101

Snyder, 930 F.2d 1090, 1095 (5th Cir. 1991).          For similar reasons, the
introduction of the evidence does not run afoul of the Confrontation Clause, as
“[s]tatements made between co-conspirators in furtherance of a conspiracy are
not testimonial”. United States v. Alaniz, 726 F.3d 586, 607 (5th Cir. 2013)
(internal quotation marks and citation omitted).
      Regarding his sentence, Trammel claims the court erred by imposing a
two-level enhancement, pursuant to Guideline § 3C1.1, for obstruction of
justice. Although post-Booker, the Sentencing 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 (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).
      The court imposed the enhancement after finding Trammel had willfully
provided false statements at his suppression hearing, regarding the timing of
the warnings provided in Miranda v. Arizona, 384 U.S. 436 (1966). Trammel
presented no evidence to counter the presentence investigation report’s
enhancement recommendation.          Because the “district court’s finding is
plausible in light of the record as a whole”, there is no clear error. Cisneros-
Gutierrez, 517 F.3d at 764 (internal quotation marks and citation omitted).
      AFFIRMED.




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