United States v. Robert Mayne , 571 F. App'x 354 ( 2014 )

Case: 13-10677 Document: 00512663347 Page: 1 Date Filed: 06/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10677 FILED
Summary Calendar June 13, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT PAUL MAYNE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-235-1
Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Robert Paul Mayne appeals his 240-month sentence following his guilty
plea conviction for conspiracy to possess with intent to distribute
methamphetamine. Mayne argues that the district court’s determination of
the amount of methamphetamine attributable to him was clearly erroneous
because it was based on inconsistent statements made by his co-conspirator,
Randy Roger Eickhoff.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10677
A district court’s calculation of the quantity of drugs involved in an
offense is a factual finding that is entitled to considerable deference and will
be reversed only if clearly erroneous. See United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005). A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole. Id. “[A] district court may adopt
the facts contained in a [presentence report] without further inquiry if those
facts have an adequate evidentiary basis with sufficient indicia of reliability
and the defendant does not present rebuttal evidence or otherwise demonstrate
that the information in the [presentence report] is unreliable.” United States
v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). “The defendant bears the
burden of showing that the information in the [presentence report] relied on
by the district court is materially untrue.” United States v. Valencia, 44 F.3d
269, 274 (5th Cir. 1995). Although the testimony of a witness who has
“contradicted himself” raises “a credibility question for the district court to
resolve,” the testimony may still bear sufficient indicia of reliability. United
States v. Ramirez, 963 F.2d 693, 708 (5th Cir. 1992).
The district court did not clearly err in relying on Eickhoff’s post-arrest
statements which, as the Government points out, were made closest to the
events and are more consistent with Mayne’s guilty plea to the indictment
charging him with conspiring to possess with intent to distribute
methamphetamine with Eickhoff from 2010 to 2012. Further, Eickhoff was
consistent in his post-arrest interview and proffer that he purchased between
one gram and one half ounce of methamphetamine from Mayne for two years.
Further, Agent Melanie Finney’s testimony supported Eickhoff’s testimony
that Mayne was involved in the August 7 and 29, 2012 transactions.
The district court heard the testimony at the sentencing hearing and
elected to credit Eickhoff’s post-arrest statements with the modifications set
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No. 13-10677
forth in the addenda. This credibility decision by the district court was within
its province as the trier-of-fact. See United States v. Sotelo, 97 F.3d 782, 799
(5th Cir. 1996). Because the evidence relied on by the district court had
sufficient indicia of reliability, and because the district court’s factual finding
regarding the amount of drugs attributable to Mayne is plausible in light of
the record as a whole, Mayne has not shown that the district court erred in
overruling his objection to the quantity of methamphetamine. See Betancourt,
422 F.3d at 246.
AFFIRMED.
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