United States v. Ki Crowder ( 2015 )

Case: 14-10558 Document: 00512914148 Page: 1 Date Filed: 01/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-10558
Fifth Circuit
FILED
Summary Calendar January 26, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
KI ROSHUN CROWDER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-163-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Ki Roshun Crowder pleaded guilty to a superseding information
charging him with one count of distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). Based on his post-arrest statements, the revised
presentence report (PSR) calculated a total drug quantity of 423.7 ounces, or
12.01 kilograms, of heroin. Using the 2013 Guidelines Manual, the revised
PSR assigned him a total offense level of 39 and a Criminal History Category
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10558
of III, which yielded a guidelines range of imprisonment of 324 months to 405
months. However, because the statutory maximum sentence of 20 years, see
§ 841(b)(1)(C), was less than the minimum of the guidelines range, the
guidelines sentence was 240 months. See U.S.S.G. § 5G1.1(a). Crowder now
appeals his sentence. He contends that the district court failed to exclude from
its calculation of total drug quantity those drugs that were intended for
personal use. He also asserts that the district court overstated the total drug
quantity because, in the Fort Worth area, an “ounce” of heroin is actually 25
grams, as opposed to the proper metric measure, 28.35 grams.
At sentencing, Crowder presented no evidence related to his purported
personal use of heroin to refute the PSR’s statement that the total quantity of
heroin involved was 12.01 kilograms. Likewise, he provided no estimate at
sentencing as to the amount of heroin intended for personal use. The PSR’s
estimate of total drug quantity intended for distribution was based on
Crowder’s own post-arrest statements. Where, as here, the defendant presents
no evidence to refute the facts to which he objects, the facts contained in the
PSR may be adopted by the district court without further inquiry, as long as
they have an adequate evidentiary basis. United States v. Alford, 142 F.3d
825, 831-32 (5th Cir. 1998). Based on the foregoing, we conclude that the
district court did not err, much less clearly err, in adopting the PSR’s position
that the total drug quantity attributable to Crowder involved an estimated
12.01 kilograms of heroin. See United States v. Betancourt, 422 F.3d 240, 246
(5th Cir. 2005).
As to Crowder’s next argument, we note that, by his own estimates, even
if his drug quantity total is calculated such that an “ounce” of heroin is only 25
grams, it would reduce the amount involved in the offense conduct to only 10.59
kilograms. This results in a base offense level of 36, which is no different than
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No. 14-10558
the base offense level for 12.01 kilograms of heroin. See U.S.S.G. § 2D1.1.
Accordingly, we need not reach the merits of Crowder’s argument. Assuming,
arguendo, that the district court erred, any error was harmless, or did not
affect his substantial rights, because the record demonstrates that the district
court would have imposed the same sentence in the absence of any error due
to the operation of the statutory maximum. See United States v. Delgado-
Martinez, 564 F.3d 750, 753 (5th Cir. 2009); see also § 841(b)(1)(C); § 5G1.1(a).
AFFIRMED.
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