     Case: 18-10196      Document: 00514906043         Page: 1    Date Filed: 04/08/2019




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


                                    No. 18-10196
                                                                                  FILED
                                                                               April 8, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR ALEX TABER, JR., also known as “Vic”,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-157-3


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Victor Alex Taber, Jr., pleaded guilty to conspiracy to possess with intent
to distribute 50 grams or more of a mixture or substance containing
methamphetamine, and he received a within-Guidelines sentence of 365
months in prison. He now appeals this sentence, asserting that the district
court erred in imposing enhancements under the Guidelines and in calculating
his criminal history.      We review the district court’s interpretation of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10196

Guidelines de novo and its factual findings for clear error. United States v.
Fernandez, 770 F.3d 340, 342 (5th Cir. 2014).
       In his first ground for relief, Taber argues that the district court erred in
imposing a two-level enhancement under U.S.S.G. § 2D1.1(b)(5) based on the
importation of methamphetamine. To the extent Taber contends that the
Government was required to prove he knew that the methamphetamine was
imported, he is incorrect. See United States v. Serfass, 684 F.3d 548, 551-52
(5th Cir. 2012). In addition, Taber maintains that it would be unjust to impose
the enhancement because in a coconspirator’s presentence report (PSR), the
probation officer determined that there was insufficient evidence to establish
that the methamphetamine received by the coconspirator from a common
supplier was imported from Mexico.             But Taber’s PSR and its addendum
indicated that in his case, the agents corroborated the information received
from    the   common      supplier    to   support     the     conclusion   that   the
methamphetamine was imported. The district court was entitled to rely on
this information for sentencing purposes, and Taber has failed to demonstrate
that the facts were untrue or unreliable. See United States v. Harris, 702 F.3d
226, 230 (5th Cir. 2012).
       Taber also contends that the district court erred by imposing a two-level
enhancement under § 2D1.1(b)(12) for maintaining a drug premises.                  He
asserts that his primary purpose in staying at a codefendant’s home was to
have a place to live, rather than to store or distribute drugs. In addition, Taber
argues that the Government failed to present evidence of the precise number
of purchases or sales he conducted at the residence or the exact quantities he
stored there. The PSR included evidence from several coconspirators who had
seen Taber on multiple occasions purchasing and storing methamphetamine
and other drugs in the home, and the owner of the residence had authorized



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                                  No. 18-10196

Taber to conduct drug sales from the premises.             The imposition of the
enhancement was plausible in light of the information included in the PSR.
See United States v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015); United States
v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013); Harris, 702 F.3d at 230. Our
unpublished opinion in United States v. Rodriguez, 707 F. App’x 224 (5th Cir.
2017) (unpublished), does not support Taber’s argument to the contrary. See
id. at 227 (stating, without resolving issue, that drug-premises enhancement
“present[ed] a close case” because “[t]he evidence in the PSR only establishe[d]
that drugs intended for distribution were present in the [defendant’s] home
once”).
      In his final ground for relief, Taber asserts that the district court erred
in imposing criminal-history points for a state conviction for property theft, a
state conviction for fraudulent use or possession of identifying information, and
a federal conviction for mail theft, all of which occurred during the pendency
of the drug conspiracy. He has not shown that these offenses constituted
relevant conduct to the methamphetamine offense. See U.S.S.G. § 4A1.2 cmt.
n.1; id. § 1B1.3(a); id. § 1B1.3 cmt. n.5(B). In addition, although Taber received
a conviction for unlawfully possessing a firearm that was discovered at the
time of his arrest for the property theft, and although that firearm formed part
of the basis for a sentencing enhancement under § 2D1.1(b)(1), Taber has not
established that the firearm possession was part of the separate theft
conviction.    Cf. United States v. Cade, 279 F.3d 265, 271 (5th Cir. 2002)
(indicating that if a prior offense was used to adjust the offense level, the
defendant typically may not receive criminal-history points for that
conviction).




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                               No. 18-10196

     Taber has not established that the district court erred in imposing his
365-month sentence.    See Fernandez, 770 F.3d at 342.      Accordingly, the
judgment of the district court is AFFIRMED.




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