United States v. Richards ( 2021 )

Case: 19-11118 Document: 00515712468 Page: 1 Date Filed: 01/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 20, 2021
No. 19-11118
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Royal Bruce Richards,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-112-2
Before Barksdale, Southwick, and Oldham, Circuit Judges.
Per Curiam:*
Royal Bruce Richards pleaded guilty to conspiracy to possess, with
intent to distribute, a substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C).
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-11118 Document: 00515712468 Page: 2 Date Filed: 01/20/2021
No. 19-11118
He was sentenced to, inter alia, a within-Sentencing Guidelines term of 87-
months’ imprisonment.
Richards challenges the court’s calculation of the drug quantity
attributable to him. Although post-Booker, the Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
The determination of the drug quantity for sentencing purposes is a
factual finding, resulting in review only for clear error. E.g., United States v.
Dinh, 920 F.3d 307, 310 (5th Cir. 2019) (citations omitted). And, a district
court may adopt the facts from a presentence investigation report (PSR)
“without further inquiry if those facts have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not present
rebuttal evidence.” Id. at 313 (internal quotation marks and citations
omitted) (emphasis in original). Moreover, when calculating drug quantity,
the district court can consider the statements of coconspirators even if they
“are somewhat imprecise”, as long as they are not “implausible”. United
States v. Kearby, 943 F.3d 969, 974–75 (5th Cir. 2019) (internal quotation
marks omitted).
The PSR stated Richards was responsible for 5,561.85 grams of
methamphetamine, based on: amounts found in his vehicle and residence;
and his distributing to three coconspirators. The PSR stated, inter alia,
2
Case: 19-11118 Document: 00515712468 Page: 3 Date Filed: 01/20/2021
No. 19-11118
Richards was responsible for 105 ounces of methamphetamine, based on daily
sales of one ounce for 105 days to one of the three coconspirators (the
resulting amount comprised approximately 54 percent of the drug quantity).
This finding was based on the coconspirator’s statement that his and
Richards’ drug relationship stretched from August or September 2018 until
Richards’ arrest that December.
In the same interview, however, the coconspirator stated he
purchased methamphetamine from Richards for “approximately six to eight
weeks”. Richards contends the drug-quantity calculation should include one
ounce of methamphetamine a day for six to eight weeks, rather than for 105
days.
Richards fails to show the longer distribution window adopted by the
district court was implausible. See Kearby, 943 F.3d at 974–75; see also United
States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). An addendum to the
PSR provides that the coconspirator’s statement is reliable, because it was
consistent with a drug ledger Richards kept during a portion of the time he
distributed methamphetamine to the coconspirator. At sentencing, however,
Richards did not introduce the drug ledger or present any other rebuttal
evidence to support the shorter window. Accordingly, the district court was
entitled to rely on the facts provided in the PSR. See Dinh, 920 F.3d at 313.
In short, Richards has not demonstrated the requisite clear error. See
Betancourt, 422 F.3d at 246.
AFFIRMED.
3