United States v. Smith ( 2021 )

Case: 20-50187 Document: 00515759742 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. 20-50187 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Samuel Earl Smith,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-259-2
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Samuel Earl Smith pleaded guilty to three counts involving conspiracy
to possess, with intent to distribute, and to distribute: at least 500 grams of a
mixture or substance containing methamphetamine; at least 500 grams of a
mixture or substance containing cocaine; and at least 280 grams of a mixture
*
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opinion should not be published and is not precedent except under the limited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: 20-50187 Document: 00515759742 Page: 2 Date Filed: 02/26/2021
No. 20-50187
or substance containing crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1). He was sentenced to, inter alia, concurrent terms of
300-months’ imprisonment on each count.
Smith challenges the court’s calculation of his Sentencing Guidelines
range, asserting the court erred by: imposing a four-level “organizer or
leader” enhancement; and finding the methamphetamine attributed to him
qualified as “Ice”. See U.S.S.G. § 2D1.1(c), Note (C) (defining “Ice” as “a
mixture or substance containing d-methamphetamine hydrochloride of at
least 80% purity”).
As Smith concedes, he did not raise these issues in district court.
Because they were not preserved, review is only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard,
Smith must show a forfeited plain error (clear or obvious error, rather than
one subject to reasonable dispute) that affected his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id. The court did not commit the requisite clear or obvious
error for either issue.
First addressed is the four-level enhancement for Smith’s being an
organizer or leader of a criminal activity involving five or more participants.
See U.S.S.G. § 3B1.1(a). The presentence investigation report (PSR) details
intercepted telephone calls in which Smith either received complaints or
solicited feedback about the quality of the cocaine he provided. Smith asserts
these facts do not support the court’s enhancement because he merely
received the complaints without taking any action. Neither party has cited
controlling authority from our court addressing whether the receipt of
complaints about the quality of the drugs provided supports an “organizer or
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Case: 20-50187 Document: 00515759742 Page: 3 Date Filed: 02/26/2021
No. 20-50187
leader” enhancement. “We ordinarily do not find plain error when we have
not previously addressed an issue.” United States v. Evans, 587 F.3d 667, 671
(5th Cir. 2009) (internal quotation marks and citation omitted).
Other facts also support the enhancement. Smith does not appear to
dispute that his criminal activities involved five or more participants or was
otherwise extensive. See U.S.S.G. § 3B1.1(a). Smith also directed at least
one co-defendant during a part of the conspiracy, and our court has held
supervision of even one individual is sufficient to establish eligibility for the
enhancement. See, e.g., United States v. Cooper, 274 F.3d 230, 247 (5th Cir.
2001). In addition, the PSR suggests Smith was the sole source of supply for
his co-defendants; although this should not be the only factor, our court has
held it is a relevant factor that can support the enhancement. See United
States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015).
As noted supra, the remaining issue is also reviewed only for plain
error: the court’s finding the methamphetamine was of sufficient purity to
qualify as “Ice”, which increased Smith’s base offense level. See U.S.S.G.
§ 2D1.1(c), Note (C) (defining “Ice”); see also U.S.S.G. § 2D1.1, cmt. n.8(D)
(“Drug Conversion Tables”). Smith asserts the PSR’s description of the
source of the tested methamphetamine is unclear; if the sample did not come
directly from his own supplier, Smith claims the link between himself and the
sample is insufficiently reliable.
We interpret the PSR’s description to mean the sample was obtained
from the person who directly supplied Smith. Even if Smith’s contrary
interpretation is correct, he cannot show the requisite plain error. The PSR
described the testing of two samples, the second of which had been seized
directly from Smith’s supplier. This second sample was determined to be
98% pure, well above the 80%-purity level required to qualify as “Ice”.
AFFIRMED.
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