United States v. Hearst ( 2022 )

Case: 21-50428 Document: 00516308522 Page: 1 Date Filed: 05/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 5, 2022
No. 21-50428
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Lamar Hearst,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-25-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
A jury convicted Christopher Lamar Hearst of conspiracy to possess
with intent to distribute five grams or more of actual methamphetamine, and
the district court imposed a sentence of 210 months in prison to be followed
by eight years of supervised release. Hearst now appeals his conviction and
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50428 Document: 00516308522 Page: 2 Date Filed: 05/05/2022
No. 21-50428
sentence, arguing that (1) there was insufficient evidence to support his
conviction and (2) the district court erred in calculating the drug quantity
used for sentencing purposes.
We review preserved challenges to the sufficiency of the evidence de
novo, see United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012), which
requires consideration of the evidence presented in the light most favorable
to the Government to determine whether a rational trier of fact could have
found the essential elements of the crimes beyond a reasonable doubt, see
United States v. Lopez-Moreno, 420 F.3d 420, 437-38 (5th Cir. 2005). In order
to sustain a conviction for conspiracy to possess with intent to distribute a
controlled substance, the Government was required to prove that (1) an
agreement existed between two or more persons to violate the applicable
narcotics laws, (2) Hearst knew of the agreement, and (3) Hearst voluntarily
participated in the agreement. See United States v. Franklin, 561 F.3d 398,
402 (5th Cir. 2009). Moreover, because the quantity of drugs involved
subjected Hearst to an enhanced penalty, the Government also had to prove
that the conspiracy involved at least five grams of actual methamphetamine.
See United States v. Turner, 319 F.3d 716, 721-22 (5th Cir. 2003).
Hearst does not dispute the existence of a conspiracy or that he knew
of and voluntarily agreed to participate in the conspiracy; accordingly, he has
abandoned those issues on appeal. See United States v. Harrison, 777 F.3d
227, 236 (5th Cir. 2015); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
However, he does argue that the Government did not prove that the
controlled substance involved in the conspiracy was actual
methamphetamine or that the drug quantity was at least five grams. Contrary
to Hearst’s assertions, the record contains sufficient direct and
circumstantial evidence to establish that the conspiracy involved at least five
grams of actual methamphetamine.
2
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First, there is no requirement that the Government had to actually
seize the quantity of drugs alleged to be involved. See United States v. Turner,
319 F.3d 716, 722-23 (5th Cir. 2003). Second, the jury could extrapolate the
purity rate from samples. See United States v. McClaren, 13 F.4th 386, 411
(5th Cir. 2021) (noting that the jury could use testimony to extrapolate drug
quantity), petition for cert. filed (Feb. 9, 2022) (No. 21-7078). The evidence
reveals that in a post-Miranda 1 statement, Hearst admitted to obtaining at
least 35 grams of methamphetamine from his supplier to give to his co-
defendant, Brenda Leigh Kirk. Testimony from law enforcement officials
revealed that the prevailing purity of the methamphetamine seized in the area
during that time period was between 90 and 95 percent, and the tested purity
rates of two samples of methamphetamine seized from Kirk and one of her
customers were 93 and 97 percent.
In weighing the evidence, the jury’s ability to infer is governed by “a
rule of reason,” and the jury is permitted to use its common sense and
evaluate the facts in light of its knowledge of the common tendencies and
inclinations of human nature. United States v. Ayala, 887 F.2d 62, 67 (5th
Cir. 1989); see also United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.
2000) (noting that the elements “may be inferred from the development and
collocation of circumstances” (internal citations and quotations omitted)).
According to testimony from law enforcement officials, in order to determine
the amount of actual methamphetamine, the purity of the substance
confiscated is multiplied by the total weight of the substance. Using this
equation, even if the jury inferred that the purity of the methamphetamine
involved in the conspiracy was only 90 percent, the evidence was sufficient
for the jury to find that Hearst conspired to possess with the intent to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 21-50428
distribute at least five grams of actual methamphetamine. See Lopez-Moreno,
420 F.3d at 437-38.
Regarding drug quantity for sentencing purposes, Hearst argues that
the district court erred in attributing 80 grams of actual methamphetamine
to him because it improperly relied on the uncorroborated statements of Kirk,
who was not credible. The district court’s determination of the quantity of
drugs attributable to a defendant is a factual finding that we review for clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
The presentence report (PSR) generally has sufficient indicia of
reliability, and in the absence of rebuttal evidence, a sentencing court may
rely on the PSR and adopt it without further explanation. United States v.
Alaniz, 726 F.3d 586, 619 (5th Cir. 2013). Furthermore, when determining
drug quantity, the district court can rely on statements from a co-conspirator,
even if those statements are “somewhat imprecise” or contain “estimates.”
United States v. Lucio, 985 F.3d 482, 487 (5th Cir.), cert. denied, 142 S. Ct. 177(2021); see also United States v. Gentry, 941 F.3d 767, 791 (5th Cir. 2019), cert.
denied, Bounds v. United States, 140 S. Ct. 2731 (2020).
Here, the district court adopted the PSR without change. Aside from
his own unsworn assertions that Kirk’s drug quantity estimates were
unreliable, Hearst does not provide any concrete evidence to rebut the
presumption of reliability afforded the information in the PSR. Betancourt,
422 F.3d at 248. Moreover, we afford due deference to any credibility
determinations the district court made regarding Kirk’s statements. See
United States v. Kearby, 943 F.3d 969, 975 n.4 (5th Cir. 2019), cert. denied, 140
S. Ct. 2584 (2020). Accordingly, the district court’s findings regarding the
drug quantity attributable to Hearst are “plausible in light of the record as a
whole.” Betancourt, 422 F.3d at 246 (internal quotation marks and citation
omitted). The judgment of the district court is AFFIRMED.
4