United States v. Harvey ( 2021 )

Case: 20-50139 Document: 00515758750 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 26, 2021
No. 20-50139 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Diandra Marie Harvey,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-168-3
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Diandra Marie Harvey and two co-conspirators, Gilbert Flores and
Shane Funkhouser, were charged with conspiracy to possess with intent to
distribute at least 500 grams of methamphetamine. Harvey pleaded guilty to
the charge and was sentenced below the advisory sentencing guidelines range
*
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opinion should not be published and is not precedent except under the limited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: 20-50139 Document: 00515758750 Page: 2 Date Filed: 02/26/2021
No. 20-50139
to the applicable mandatory minimum prison term of 10 years, to be followed
by a five-year term of supervised release. On appeal, Harvey challenges the
district court’s denial of a safety-valve reduction and a minor-role reduction.
We review a district court’s legal interpretation of the Sentencing
Guidelines de novo and its findings of fact as to the application of the
provisions for clear error. See United States v. Torres-Hernandez, 843 F.3d
203, 207 (5th Cir. 2016); United States v. Flanagan, 80 F.3d 143, 145 (5th Cir.
1996). Reasonable factual inferences drawn by the district court in support
of its findings are also reviewed for clear error. United States v. King, 773 F.3d
48, 52 (5th Cir. 2014).
Harvey first challenges the district court’s refusal to apply the two-
level reduction under U.S.S.G. § 2D1.1(b)(18) because she satisfied the
safety valve requirements under 18 U.S.C. § 3553(f). Relevant here,
§ 3353(f)(2) sets forth the requirement that the defendant not possess a
firearm—actually or constructively—in connection with the offense. See
United States v. Matias, 465 F.3d 169, 174 (5th Cir. 2006).
The record indicates that Harvey was living with Flores in a motel
room that contained an extensive amount of drugs and firearm magazines and
ammunition. This evidence supports the district court’s determination that
a plausible inference exists that Harvey had knowledge of and access to the
firearm. See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).
Harvey did not offer evidence proving that it was clearly improbable that she
had constructive possession of the firearm. Thus, Harvey failed in her
burden to prove the lack of a connection between the firearm found in
Flores’s vehicle and the drug conspiracy, and the district court therefore did
not clearly err in declining to apply a safety-valve reduction under § 3553(f).
See Matias, 465 F.3d at 173-74; Flanagan, 80 F.3d at 146-47; Fields, 72 F.3d
at 1212.
2
Case: 20-50139 Document: 00515758750 Page: 3 Date Filed: 02/26/2021
No. 20-50139
Harvey next challenges the district court’s denial of her request for a
two-level minor-role adjustment under U.S.S.G. § 3B1.2. She argues that she
“was substantially less culpable than the average participant” in her drug
offense of conviction.
The record reflects that Harvey’s drug offense of conviction involved
a large amount of drugs, that Harvey assisted with storing and protecting the
drugs involved in the conspiracy, and that Harvey assisted in the distribution
of the drugs by accompanying Flores on drug sales and deliveries. This
evidence supports the district court’s determination that Harvey was not
substantially less culpable than the average participant and does not leave one
“with the definite and firm conviction that a mistake has been committed.”
United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012) (internal quotation
marks and citation omitted); see also United States v. Harris, 740 F.3d 956,
967 (5th Cir. 2014); § 3B1.2 cmt. n.3(C).
The district court’s judgment is AFFIRMED.
3