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United States v. West ( 2023 )


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  • Case: 22-20483         Document: 00516797606             Page: 1      Date Filed: 06/23/2023
United States Court of Appeals
for the Fifth Circuit
____________                                United States Court of Appeals
Fifth Circuit
No. 22-20483
FILED
June 23, 2023
Summary Calendar
____________                                     Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jermaine Deshan West,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-355-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Jermaine Deshan West pleaded guilty to one count of conspiring to
possess with intent to distribute 500 grams or more of methamphetamine,
500 grams or more of cocaine, and hydrocodone and oxycodone; four counts
of aiding and abetting possession of a mixture and substance containing a
detectable amount of cocaine, with intent to distribute, within 1000 feet of a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20483      Document: 00516797606          Page: 2      Date Filed: 06/23/2023
No. 22-20483
high school; one count of possessing with intent to distribute 500 grams or
more of methamphetamine; one count of possessing with intent to distribute
a mixture or substance containing a detectable amount of hydrocodone; and
three counts of aiding and abetting possession of a mixture and substance
containing a detectable amount hydrocodone and oxycodone with intent to
distribute. West received a within-guidelines sentence of a total of 280
months of imprisonment, to be followed by six years of supervised release.
On appeal, West argues that the district court incorrectly calculated his
offense level under the Sentencing Guidelines. He further contends that the
district court’s reliance on the methamphetamine Guidelines rendered his
within-guidelines sentence substantively unreasonable.
West challenges the district court’s application of the four-level
sentencing enhancement for being a leader or organizer pursuant to U.S.S.G.
§ 3B1.1(a). Because West preserved his challenge in the district court, we
review de novo the district court’s interpretation or application of the
Sentencing Guidelines and its factual findings for clear error. See United
States v. Muniz,
    803 F.3d 709
    , 712 (5th Cir. 2015). We conclude that the
record supports the application of § 3B1.1(a). See United States v. Sims,
    11 F.4th 315
    , 325 (5th Cir. 2021), cert. denied,
    142 S. Ct. 827 (2022)
    . Despite
West’s argument that he was not a leader or organizer because he did not
own or operate any of the clinics or pharmacies involved in the drug
trafficking, the district court could reasonably infer from the findings in the
presentence report (PSR) that West was a leader or organizer in the criminal
activity to support application of a four-level sentencing enhancement. See
United States v. Caldwell,
    448 F.3d 287
    , 290 (5th Cir. 2006); see also § 3B1.1,
comment. (n.4). West presented no rebuttal evidence indicating that any of
the facts in the PSR were inaccurate or materially untrue. See Caldwell,
    448 F.3d at 290
    . West fails to demonstrate that the district court’s factual finding
was not “plausible in light of the record as a whole.”
    Id.
    2
Case: 22-20483      Document: 00516797606           Page: 3     Date Filed: 06/23/2023
No. 22-20483
Finally, West preserved his challenge to the substantive
reasonableness of his sentence, see Holguin-Hernandez v. United States,
    140 S. Ct. 762
    , 766 (2020), and our review is for abuse of discretion, Gall v. United
States,
    552 U.S. 38
    , 49-50 (2007). Because West’s sentence of 280 months
of imprisonment is within the properly calculated guidelines range, it is
presumptively reasonable. See United States v. Campos-Maldonado,
    531 F.3d 337
    , 338 (5th Cir. 2008). We have rejected West’s argument that a within-
guidelines sentence is substantively unreasonable because the applicable
methamphetamine Guideline lacks an empirical basis. See United States v.
Lara,
    23 F.4th 459
    , 486 (5th Cir. 2022), cert. denied,
    142 S. Ct. 2790 (2022)
    ;
see also United States v. Mondragon-Santiago,
    564 F.3d 357
    , 366-67 (5th Cir.
2009); United States v. Duarte,
    569 F.3d 528
    , 530-31 (5th Cir. 2009). In
addition, he fails to rebut the presumption that his sentence is reasonable.
United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009).
AFFIRMED.
3