     Case: 12-10584       Document: 00512128364         Page: 1     Date Filed: 01/29/2013




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

                                                                            FILED
                                                                         January 29, 2013
                                     No. 12-10584
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALEXANDER JAMES BAKER, also known as Alex,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-193-4


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Alexander James Baker appeals the district court’s imposing a 128-month
imprisonment sentence following his guilty-plea conviction of conspiracy to
possess with intent to distribute a controlled substance. Baker contends the
district court erred: procedurally, by determining drug quantity based upon
unreliable evidence and improper use of the multiplier method; and
substantively, by sentencing him unreasonably based upon an estimated drug
quantity not supported by reliable evidence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10584

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). 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); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Although drug quantity was not specified in Baker’s indictment,
“quantities of drugs not specified in the count of conviction may be considered
in determining the [advisory Guidelines] offense level”. U.S.S.G. § 2D1.1 cmt.
n.12 (2011). “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.” Id. When estimating drug quantity, the court “may
extrapolate the quantity from any information that has sufficient indicia of
reliability to support its probable accuracy”. United States v. Valdez, 453 F.3d
252, 267 (5th Cir. 2006) (internal quotation marks omitted). Estimates need not
be precise. E.g., United States v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998)
(reliance on imprecise testimony of drug amounts for total amount-calculation
not clear error).
      Considering the various drug-quantity estimates set forth by the parties
and the record as a whole, the court’s determining Baker was responsible for at
least 500 grams of methamphetamine, resulting in a 32-level base offense, is
plausible and, thus, not clearly erroneous. U.S.S.G. § 2D1.1(c)(4); see, e.g.,
United States v. Betancourt, 422 F.3d 240, 246-47 (5th Cir. 2005). Therefore,
there was no procedural error.
      Baker relies solely upon the above-discussed drug-quantity challenge to
contend his sentence is substantively unreasonable. Because the district court

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                                 No. 12-10584

did not err in its drug-quantity calculation, Baker’s sentence, which was within
the advisory Guidelines sentencing range of 108 to 135 months, is presumed
reasonable. See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009).
      AFFIRMED.




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