United States v. Berry ( 2023 )

Case: 22-10170 Document: 00516604079 Page: 1 Date Filed: 01/10/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10170
Summary Calendar FILED
January 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ronald Berry,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-208-1
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Ronald Berry appeals his within-guidelines 168-month prison
sentence that was imposed following his guilty plea conviction for possession
with the intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 22-10170
For preserved errors, we review the district court’s interpretation of
the Sentencing Guidelines de novo and its factual findings for clear error. See
United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). “A factual
finding is not clearly erroneous if it is plausible, considering the record as a
whole.” United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010).
Berry argues that the district court erred in applying the two-level
enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for
the purpose of manufacturing or distributing a controlled substance. In
particular, Berry contends that the plain language of § 2D1.1(b)(12) and its
application notes preclude its application to a primary residence. We need
not decide whether Berry has preserved that legal argument because it fails
regardless of the standard of review. See Hernandez v. United States, 888 F.3d
219, 222-23 (5th Cir. 2018). This court has held that the use of a premises as
a residence does not preclude application of the drug-premises enhancement
under § 2D1.1(b)(12). See United States v. Galicia, 983 F.3d 842, 844 (5th
Cir. 2020).
Moreover, Berry contends that there is insufficient evidence to
support the premises enhancement in this case. The record, however,
showed that, over three times in two weeks, a confidential source purchased
drugs from Berry at his residence. Berry’s roommate, who had moved in with
Berry six months prior to the arrest, knew Berry to deal drugs from the
residence, and the roommate said that he even let Berry’s customers inside
the residence so that Berry could sell them drugs. Furthermore, a search of
the residence revealed: a surveillance system; thousands of dollars in drug
proceeds; loaded handguns and a rifle; and three baggies of
methamphetamine, two baggies of heroin, two baggies and two jars of
marijuana, three baggies of cocaine, and six baggies of pills. Investigators also
observed vehicle traffic arriving and departing from the residence. In view of
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the record, the district court did not clearly err in applying the drug-premises
enhancement here. See Galicia, 983 F.3d at 845.
In addition, Berry contends that the district court erred by considering
his pending murder charge in sentencing him. We review this unpreserved
challenge for plain error. See United States v. Zarco-Beiza, 24 F.4th 477, 481-
82 (5th Cir. 2022). On plain error review, Berry must demonstrate that:
(1) the district court erred; (2) the error was plain or obvious; (3) the error
affected his substantial rights; and (4) the error “seriously affected the
fairness, integrity or public reputation of judicial proceedings.” Id. at 482
(internal quotation marks, brackets, and citation omitted).
A district court cannot rely on a bare arrest record or a bare pending
charge when determining a defendant’s sentence. See id. at 482-83. In this
case, however, the pending charge was not bare because it was accompanied
by a factual recitation of Berry’s conduct that gave rise to the charge, and the
factual recitation had sufficient indicia of reliability because it was drawn
from a police report and included information gathered from an interview
with a witness. See id. at 482; United States v. Fields, 932 F.3d 316, 320 (5th
Cir. 2019). Because the factual recitation possessed sufficient indicia of
reliability and Berry did not offer any rebuttal evidence challenging the
truthfulness, accuracy, or reliability of the evidence supporting the factual
recitation, the district court could properly consider the pending murder
charge when imposing Berry’s sentence. See United States v. Harris, 702 F.3d
226, 231 (5th Cir. 2012). Accordingly, Berry has not shown any clear or
obvious error.
Moreover, Berry has not shown that the error, if any, affected his
substantial rights. See Zarco-Beiza, 24 F.4th at 482. The district court did
not mention the pending murder charge when providing its reasons for his
sentence. Rather, the district court explained that its sentence was justified
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by the facts of the instant offense—Berry’s drug distribution offense. On this
record, Berry has not demonstrated a “reasonable probability that he would
have received a lesser sentence but for the court’s consideration” of his
pending murder charge. Zarco-Beiza, 24 F.4th at 483.
Finally, Berry contends that his sentence at the top of his guidelines
range was greater than necessary to meet the sentencing objectives set forth
in 18 U.S.C. § 3553. In support, Berry highlights: (1) the limited number of
drug transactions with the confidential source; (2) his low criminal history
score; (3) the nationwide median sentence for methamphetamine traffickers;
and (4) his low risk for recidivism.
As Berry preserved this challenge, our review is for an abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Hinojosa-Almance, 977 F.3d 407, 411 (5th Cir. 2020). Where, as here, the
district court imposed a sentence within the guidelines range, the sentence is
entitled to a rebuttable presumption of reasonableness on appeal. United
States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012). “The presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
Berry has not made that showing here. The district court considered
Berry’s mitigation arguments but determined that the 168-month sentence
was necessary based on the § 3553(a) factors. Berry’s “claim amounts to a
request that we reweigh the sentencing factors and substitute our judgment
for that of the district court, which we will not do.” United States v.
Hernandez, 876 F.3d 161, 167 (5th Cir. 2017). Accordingly, Berry has not
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rebutted the presumption that his within-guidelines sentence is reasonable.
See id.AFFIRMED.
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