United States v. Bouldin , 248 F. App'x 541 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 05-11003
September 19, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICHARD BOULDIN, also known as Waco
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-11-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Richard Bouldin appeals the sentence imposed following his guilty-plea
conviction for possession with intent to distribute a controlled substance. First,
he asserts that the district court clearly erred in calculating the quantity of
drugs attributable to him. The district court heard testimony from witnesses
that supported its finding that between 500-1500 grams of cocaine were sold as
part of the jointly undertaken criminal activity that included Bouldin. As 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should not be published and is not precedent except under the limited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.
No. 05-11003
court’s finding is plausible in light of the record as a whole, it is not clearly
erroneous. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
Bouldin also argues that because the drug quantity for sentencing greatly
exceeded the amount involved in the offense for which he was convicted, the
district court should have used a higher standard of proof than the customary
preponderance-of-the-evidence standard to determine his base offense level.
Although Bouldin is correct that we have previously suggested that there may
be circumstances when relevant conduct has so greatly increased the sentence
that a higher standard of proof must apply, this is not such a case. See United
States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994) .
Next, Bouldin contends that the two-level enhancement he received for
possessing a firearm was unreasonable. The court’s finding that Bouldin
possessed a firearm in connection with the sale of controlled substances is
plausible in light of the record, and the application of the enhancement was not
clearly erroneous. See Caldwell, 448 F.3d at 290; United States v. Sotelo,
97 F.3d 782, 799 (5th Cir.1996); U.S.S.G. § 2D1.1(b)(1) .
Bouldin asserts that the district court erred in concluding that he failed
to clearly demonstrate his acceptance of responsibility. Bouldin frivolously
asserted during the sentencing hearing that he was responsible for only nine
grams of crack cocaine. As there was a foundation for the district court’s
determination that Bouldin failed to demonstrate his acceptance of
responsibility, its finding to that effect is not clearly erroneous. See United
States v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir.2003); United States v.
Washington, 340 F.3d 222, 227-28 (5th Cir.2003).
Finally, Bouldin argues that, for a variety of reasons, his sentence was
unreasonable. Because Bouldin was sentenced within the properly calculated
guidelines range, his sentence is presumptively reasonable. See Rita v. United
States, 127 S. Ct. 2456, 2462-66 (2007); United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). Moreover, because the sentence was within the properly
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No. 05-11003
calculated guidelines range, it is inferred that the district court considered the
18 U.S.C. § 3553(a) factors. See United States v. Mares, 402 F.3d 511, 519-20
(5th Cir. 2005). Bouldin's sentence is AFFIRMED.
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