United States v. Otto Christofferson ( 2020 )

Case: 19-51095 Document: 00515553040 Page: 1 Date Filed: 09/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-51095 September 4, 2020
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Otto Edward Christofferson,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-118-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Otto Edward Christofferson pleaded guilty to one count of possession
with intent to distribute five grams or more of actual methamphetamine, and
the district court sentenced him within the advisory guidelines range to 293
months of imprisonment. He now appeals and challenges only his sentence.
*
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opinion should not be published and is not precedent except under the limited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. 19-51095
First, Christofferson argues that the district court erred in assigning
him a base offense level of 36 under U.S.S.G. § 2D1.1(a)(5) based on its
estimate of the drug quantity attributable to him. He challenges the reliability
of his statements to police about his prior drug distribution because he was
intoxicated at the time of his arrest and also contends that laboratory tests did
not establish the purity of the unseized methamphetamine. Christofferson
also asserts that the drug quantity approximation was unreliable because
there was no evidence to corroborate the finding that he sold three ounces of
methamphetamine for 21 days.
For preserved error, we review the district court’s interpretations of
the Guidelines de novo and the district court’s factual findings for clear error.
United States v. Haines, 803 F.3d 713, 743 (5th Cir. 2015).
As to the reliability of his statements to police, the district court did
not err in relying upon them to extrapolate the drug quantity. See United
States v. Barfield, 941 F.3d 757, 764 (5th Cir. 2019), cert. denied, 140 S. Ct.
1282 (2020); Haines, 803 F.3d at 743. Christofferson alleges that his
intoxication rendered the statements unreliable, but medical officials cleared
him twice after his arrest. Therefore, the finding that Christofferson’s
statements regarding his prior drug distribution were reliable was plausible in
the light of the record as a whole. See United States v. Alaniz, 726 F.3d 586,
618 (5th Cir. 2013). In addition, given that the Guidelines specifically allow
for estimating drug quantity, a straightforward multiplication based on the
amounts and time span provided by Christofferson was not clearly erroneous.
See § 2D1.1, comment. (n.5); Barfield, 941 F.3d at 764.
Similarly, Christofferson has not shown that the district court clearly
erred by estimating the drug purity based on the unrebutted facts in the
presentence report. See United States v. Dinh, 920 F.3d 307, 313 (5th Cir.
2019); Alaniz, 726 F.3d at 618-19. The record reflected that the purity rate
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No. 19-51095
of the drugs seized from Christofferson’s safe was 98%. In the absence of any
evidence to the contrary, the district court plausibly could have found that
the methamphetamine distributed by Christofferson prior to his arrest had a
similar purity rate. See United States v. Rodriguez, 666 F.3d 944, 947 (5th Cir.
2012). Because the challenged factual findings are plausible in light of the
record as a whole, Christofferson has shown no clear error in the district
court’s calculation of the drug quantity attributable to him. See Alaniz, 726
F.3d at 618.
Second, Christofferson asserts that the district court imposed a
substantively unreasonable sentence because the sentence was greater than
necessary to comply with the goals of the 18 U.S.C. § 3553(a) sentencing
factors. Christofferson’s conclusional assertion that a lower sentence would
have satisfied the goals of § 3553(a) constitutes a mere disagreement with the
district court’s weighing of those factors, which is insufficient to justify
reversal. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly,
Christofferson fails to rebut the presumption of reasonableness that applies
to his within-guidelines sentence. See Cooks, 589 F.3d at 186.
AFFIRMED.
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