United States v. Thomas ( 2022 )

Case: 21-50663 Document: 00516315696 Page: 1 Date Filed: 05/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 11, 2022
No. 21-50663 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Travis Thomas, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:21-CR-18-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Travis Thomas, Jr., appeals his conviction and sentence for conspir-
acy to possess with intent to distribute 50 grams or more of methampheta-
mine (“meth”), possession with intent to distribute 50 grams or more of
meth, possession with intent to distribute fentanyl, possession of a firearm in
*
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opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
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No. 21-50663
furtherance of a drug-trafficking crime, and possession of a firearm as a felon.
Thomas challenges an amendment to the indictment, the drug quantity
calculation, and an obstruction-of-justice enhancement, and he avers that
trial counsel provided ineffective assistance by failing to object to the presen-
tence report (“PSR”).
The Fifth Amendment provides the defendant the right to be tried
solely on the grand jury’s allegations. Stirone v. United States, 361 U.S. 212,
215–18 (1960). Substantive amendments to the indictment must be resubmit-
ted to the grand jury. United States v. Huff, 512 F.2d 66, 69 (5th Cir. 1975).
In this case, alleging unlawful possession of “fentyl” and amending
the indictment to allege “fentanyl” was an amendment of form rather than
substance. See United States v. Young Bros., Inc., 728 F.2d 682, 693 (5th Cir.
1984). Although there is a pharmaceutical drug called Fentyl, the record
shows that this was a misnomer, as there is no evidence related to Fentyl or
to an injectable form of fentanyl. Thomas was arrested while in possession
of pills, and he received discovery alerting him that the pills contained fen-
tanyl. Thomas also gave a statement that he had traded fentanyl pills, among
other things, for the stolen car he was driving. He never claimed that he had
prepared to meet an indictment charging him with possessing the injectable
liquid form of fentanyl made in Bangladesh under the brand name Fentyl.
As for the drug-quantity finding, Thomas’s statements in his police
interview, which occurred after he was advised of his Miranda rights, are suf-
ficiently reliable evidence of the quantity for those transactions. See United
States v. Barfield, 941 F.3d 757, 763–64 (5th Cir. 2019). Although the lab
report with the purity findings was excluded at trial as hearsay, the drug-
quantity calculation may be based on reliable evidence without regard to its
admissibility under the rules of evidence. See U.S.S.G. § 6A1.3, p.s.; United
States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013); see United States v. Dinh,
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No. 21-50663
920 F.3d 307, 313 (5th Cir. 2019).
It was appropriate for the district court to extrapolate the purity level,
given Thomas’s admission that a man named Alex was his sole source of
supply for the drugs he delivered and mailed to Franco. See United States v.
Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012). Thus, Thomas has not shown
that the district court’s reliance on the PSR’s calculation of purity level, and
its resulting determination of the amount of actual meth attributed to
Thomas, was error, plain or otherwise. See United States v. Betancourt,
422 F.3d 240, 247 (5th Cir. 2005).
Additionally, Thomas fails to show plain error in the imposition of a
sentence enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. His
testimony at his codefendant’s trial that the codefendant had no knowledge
of the drugs was contradicted by his codefendant’s statements to police.
Thomas’s testimony was relevant to the material fact of whether his codefen-
dant had knowledge of the drugs and supports a finding that Thomas com-
mitted perjury by attempting falsely to exculpate his codefendant. See United
States v. Flanagan, 484 F. App’x 973, 974 (5th Cir. 2012); see § 3C1.1, com-
ment. (n.4(B)).
In his final issue on appeal, Thomas complains that he received inef-
fective assistance because his trial attorney failed to object to the drug-
quantity calculation and the sentence enhancement in the PSR. Because
Thomas’s post-Miranda statements constitute sufficiently reliable evidence
of the quantity, and the source of supply supports the district court’s reliance
on the PSR’s calculation of purity, counsel was not deficient in failing to
object to the amount of actual meth attributed to Thomas. See United States
v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (noting that counsel does not ren-
der ineffective assistance by failing to make meritless objections). Likewise,
because Thomas’s attempt to exculpate his codefendant supports the en-
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No. 21-50663
hancement for obstruction of justice, counsel was not deficient in failing to
object to the enhancement. See id. Thomas has not shown that counsel was
deficient in failing to object to the PSR or that he was prejudiced by such a
failure. See Strickland v. Washington, 466 U.S. 668, 697 (1984).
AFFIRMED.
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