United States v. Diaz ( 2023 )

Case: 22-51112 Document: 00516933395 Page: 1 Date Filed: 10/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-51112
Summary Calendar FILED
____________ October 17, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Alejandro Diaz,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-103-1
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
Alejandro Diaz appeals the 151-month within-guidelines sentence
imposed after his guilty plea conviction for possession with intent to
distribute 50 grams or more of actual methamphetamine. He argues the
district court clearly erred in finding that he was responsible for at least 500
grams of actual methamphetamine in determining his base offense level.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-51112 Document: 00516933395 Page: 2 Date Filed: 10/17/2023
No. 22-51112
Because Diaz preserved his challenge to the district court’s drug
quantity calculation, we review the district court’s “factual findings for clear
error.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A factual
finding is not clearly erroneous if it is plausible in light of the record as a
whole.” United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013) (internal
quotation marks and citation omitted).
In determining the drug quantity, the district court reasonably relied
on information in the presentence report (PSR), including the police officers’
investigation, surveillance, controlled purchases from Diaz, and Diaz’s text
and What’s App messages. See United States v. Lucio, 985 F.3d 482, 485-88
(5th Cir. 2021). Further, the Government presented Diaz’s What’s App
messages, in which he discussed purchasing and distributing various
quantities of methamphetamine with at least three individuals. Diaz also
admitted at the sentencing hearing that he had sold 300 to 400 grams of actual
methamphetamine. The district court found incredible Diaz’s testimony
that he did not sell 500 grams of actual methamphetamine, and we defer to
that finding. See United States v. Perez, 217 F.3d 323, 332 (5th Cir. 2000).
Other than his testimony, Diaz did not present any additional evidence to
rebut the drug quantity information in the PSR. The district court’s finding
that Diaz was accountable for at least 500 grams of actual methamphetamine
was plausible in view of the record as a whole and, therefore, was not clearly
erroneous. See Alaniz, 726 F.3d at 618.
AFFIRMED.
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