United States v. Kenny ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2008
No. 08-10079
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KELLY KENNY
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-80-6
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Kelly Kenny pleaded guilty to possessing methamphetamine with intent
to distribute. She was sentenced to a 63-month term of imprisonment. She
claims that the district court miscalculated her guidelines range when it held
her accountable for the actual weight of methamphetamine rather than the
weight of the mixture or substance, as the latter would have yielded a lesser
sentence. She claims that the district court also committed procedural error
when it held her accountable for all of the methamphetamine (actual) involved
*
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should not be published and is not precedent except under the limited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.
No. 08-10079
in a proposed transaction at which she had not intended to be present. She
claims also that her sentence was substantively unreasonable because it was
harsher than sentences imposed on others involved in the same two
transactions.
We review sentencing decisions for abuse of discretion. United States v.
Rowan, 530 F.3d 379, 381 (5th Cir. 2008). This review process is bifurcated. Id.(citing Gall v. United States, 128 S. Ct. 586, 596-98 (2008)). We first determine
whether the district court committed a significant procedural error. Id. If the
sentence is procedurally sound, we then consider the “substantive
reasonableness” of the sentence under an abuse-of-discretion standard. Id.“The District Court commits a procedural error if: it miscalculates or fails
to calculate the proper Guidelines range; it treats the Guidelines as mandatory;
it imposes a sentence based on clearly erroneous facts; it fails to consider the
factors set forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen
sentence or any deviation from the Guidelines range.” Rowan, 530 F.3d at 381.
Even after Gall, this court’s review of a district court’s construction of the
Guidelines continues to be de novo and its review of findings of fact continues to
be for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008). “An error in applying the Guidelines is a significant procedural error
that constitutes an abuse of discretion.” United States v. Klein, 543 F.3d 206,
213 (5th Cir. 2008).
The Sentencing Guidelines direct that the base offense level be
“determined by the entire weight of the mixture or substance, or the offense level
determined by the weight of the . . . methamphetamine (actual), whichever is
greater.” U.S.S.G. § 2D1.1, note (B). The district court did not err in calculating
Kenny’s sentence based on the weight of the methamphetamine (actual) involved
in Kenny’s transactions. Nor did it err by calculating the sentence based on the
total amount of drugs from the two transactions. The base offense level and
adjustments thereto are to be determined on the basis of relevant conduct, which
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No. 08-10079
includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant,”
§ 1B1.3(a)(1), that “were part of the same course of conduct or common scheme
or plan as the offense of conviction.” § 1B1.3(a)(2); see also § 3D1.2(d). Kenny
aided and abetted the second transaction by providing the Government’s
confidential informant with a cellular telephone number to facilitate it.
Consequently, the events of and leading to that day constituted relevant conduct
for which she is accountable even though she was not convicted of any crime
because of them. See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir.
2007) (stating that “[a]n offense need not have resulted in a conviction to
constitute relevant conduct under the guidelines”). Additionally, it is clear from
the presentence investigation report (PSR) that the total amount of drugs
desired by the confidential informant was capable of being produced for the
second transaction, although that amount was not present and seized. In the
absence of credible rebuttal evidence by Kenny, the district court was free to
adopt the PSR’s findings as its own. See United States v. Ayala, 47 F.3d 688, 690
(5th Cir. 1995).
Nor has Kenny shown that her sentence was substantively unreasonable.
In considering an appropriate sentence, the district court should take into
account “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.”
§ 3553(a)(6). The record does not reveal the bases for the sentences later
imposed on the other defendants involved in Kenny’s two transactions. Thus,
it is unknown whether they and Kenny were indeed similarly situated with
respect to criminal history and circumstances. As a consequence, we cannot
determine whether the disparities of which Kenny complains were unwarranted.
AFFIRMED.
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