United States v. Killough ( 2021 )

Case: 20-10578 Document: 00515871501 Page: 1 Date Filed: 05/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 21, 2021
No. 20-10578
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Kevin Kyle Killough,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-132-7
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Kevin Kyle Killough was convicted by a jury of conspiracy to possess,
with intent to distribute, 50 grams or more of methamphetamine, in violation
of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). He was sentenced, inter alia,
to life imprisonment. Our court vacated his sentence and remanded the case
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10578
for resentencing, because there was “no information with sufficient indicia
of reliability to support the district court’s conclusion that 56.6 kilograms of
meth[amphetamine] should have been attributed to [Killough]”. United
States v. Gentry, 941 F.3d 767, 789 (5th Cir. 2019), cert. denied sub nom. Bounds
v. United States, 140 S. Ct. 2731 (2020).
On remand, a second addendum to the presentence investigation
report (PSR) was issued, which had Killough accountable for 5.6 kilograms
of methamphetamine. Finding that amount attributable to Killough, the
district court sentenced him to, inter alia, 360-months’ imprisonment.
Killough claims the court erred in calculating the quantity of drugs
attributable to him when it adopted facts in the PSR based on a co-
conspirator’s unreliable statements during a proffer interview. Along that
line, Killough asserts: he submitted rebuttal evidence in the form of an
affidavit; and the court failed to explain why it accepted the co-conspirator’s
statements over his affidavit.
The Government contends Killough’s claim, which was not raised in
his first appeal, is waived under the mandate rule. See United States v. Lee,
358 F.3d 315, 321 (5th Cir. 2004). We do not address the applicability of the
mandate rule and proceed to the merits of Killough’s claim because, as
discussed below, there was no sentencing error. See United States v. Simpson,
796 F.3d 548, 552 (5th Cir. 2015).
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, 46, 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
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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 district court’s drug-quantity calculation is a factual finding,
which, as discussed above, is reviewed for clear error. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). “A factual finding is not
clearly erroneous as long as it is plausible in [the] light of the record as a
whole.” Id. (internal quotation marks and citation omitted).
In an addendum to the PSR, the probation officer explained that the
co-conspirator’s statements during the proffer interview were deemed
reliable by the case agents. At Killough’s original sentencing, a case agent
testified that the information provided by the co-conspirator had been
corroborated and verified, not found to be untruthful, and relied upon in
several proceedings and for investigative purposes. The facts in the PSR and
its addenda, therefore, had an adequate evidentiary basis with sufficient
indicia of reliability. “When faced with facts contained in the PSR that are
supported by an adequate evidentiary basis with a sufficient indicia of
reliability, a defendant must offer rebuttal evidence demonstrating that those
facts are ‘materially untrue, inaccurate or unreliable’”. United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Huerta,
182 F.3d 361, 364–65 (5th Cir. 1999)).
Killough did not do so. The only rebuttal evidence he submitted was
a conclusory affidavit, which had also been submitted at the original
sentencing, in which he denied receiving any methamphetamine from the
other co-conspirator.
In overruling Killough’s objection to the drug-quantity calculation at
resentencing, the court stated it had reviewed Killough’s affidavit, which had
been considered at his original sentencing. The court also explained that it
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had considered the PSR and its addenda, the parties’ filings and arguments,
and the entire case file. Therefore, the record reflects that the district court
considered Killough’s rebuttal evidence and adequately explained its
sentencing decision. See United States v. Dinh, 920 F.3d 307, 313 (5th Cir.
2019). Because the court’s drug-quantity calculation is plausible in the light
of the record as a whole, Killough has not demonstrated the requisite clear
error. See Betancourt, 422 F.3d at 246.
AFFIRMED.
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