United States v. Jack Baker

Case: 14-11033 Document: 00513082189 Page: 1 Date Filed: 06/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-11033 June 17, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JACK BAKER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-44-1
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Jack Baker appeals the 420-month within-guidelines sentence that was
imposed following his conviction for conspiracy to possess with the intent to
distribute methamphetamine. Finding no error, we affirm.
Baker first argues that the district court clearly erred in applying a two-
level enhancement under U.S.S.G. § 2D1.1(b)(1) based on a finding that a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-11033
firearm was possessed. Baker contends that there was no credible evidence
that he had a firearm.
We review de novo the legal application of the Guidelines and factual
findings for clear error. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010). Section 2D1.1(b)(1) provides for a two-level upward adjustment to
the defendant’s offense level “[i]f a dangerous weapon (including a firearm) was
possessed.” § 2D1.1(b)(1). The Government can prove that the defendant
personally possessed the weapon or that a coconspirator knowingly possessed
the weapon and that the coconspirator’s possession was reasonably
foreseeable. Zapata-Lara, 615 F.3d at 390.
In the instant case, the record contains evidence and the district court
found that two of Baker’s coconspirators knowingly possessed firearms. Baker
does not challenge the application of the enhancement on this basis. Therefore,
he fails to show that the district court’s application of the enhancement was
clearly erroneous. See Zapata-Lara, 615 F.3d at 390. Moreover, to the extent
that Baker challenges the finding by the district court that he possessed a
handgun in connection with the offense, the court’s decision to reject the
testimony of Baker’s mother and credit the testimony of Officer Shayne Kotara
on this issue is a credibility determination “peculiarly within the province” of
the district court and will not be disturbed by this court. United States v.
Goncalves, 613 F.3d 601, 609 (5th Cir. 2010) (internal quotation marks and
citation omitted).
Baker next challenges the district court’s finding on the amount of
methamphetamine for which he was held responsible, asserting that the
statements by coconspirators on this issue were not credible. The evidence
submitted by Baker at the sentencing hearing did not rebut the information in
the Presentence Report (PSR) regarding drug quantity. Baker’s argument is
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No. 14-11033
based solely on the speculative assertion that his coconspirators lied about the
amounts attributable to him. In light of the information contained in the PSR
as well as the testimony of Officer Kotara, the district court’s factual finding
regarding drug quantity was plausible and not clearly erroneous. See United
States v. Alaniz, 726 F.3d 586, 618-19 (5th Cir. 2013).
Also, as to drug quantity, Baker argues that there was no reliable
evidence to support the determination that he was responsible for actual
methamphetamine. The PSR held Baker responsible for 180 ounces of actual
methamphetamine, which resulted in a marijuana equivalency of 102,060
kilograms.
Although Baker objected to the drug quantity determination, he did not
challenge the purity finding or argue that the quantity was incorrect on this
basis. Because Baker’s objections did not sufficiently apprise the court of the
basis of the challenge to the enhancement he now asserts on appeal, this issue
is subject to plain error review. See United States v. Chavez-Hernandez, 671
F.3d 494, 497-98 (5th Cir. 2012).
A district court’s calculation of the quantity of drugs involved in an
offense is a factual finding that can never constitute plain error. United States
v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012); United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005); see also United States v. Hernandez, 202 F.
App’x 708, 711 (5th Cir. 2006). Moreover, Baker failed to provide any evidence
to rebut the PSR’s determination regarding the purity level of the
methamphetamine obtained by Baker. He has not shown that the district
court committed plain error by estimating his drug quantity based on the
purity finding in the PSR. See Alaniz, 726 F.3d at 618-19.
Finally, Baker challenges the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(5) based on the finding that the methamphetamine was imported
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from Mexico. He argues that there is no evidence that he knew the
methamphetamine was imported from Mexico. Baker acknowledges that this
issue is foreclosed in light of the decision in United States v. Serfass, 684 F.3d
548, 549-50, 553 (5th Cir. 2012), but contends that the Serfass decision is
wrong.
We do not entertain this argument, as a panel of this court may not
overrule the decision of another absent a superseding en banc or Supreme
Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th
Cir. 2002). The possession with intent to distribute imported
methamphetamine “without more” subjects the defendant to the § 2D1.1(b)(5)
enhancement. United States v. Foulks, 747 F.3d 914, 915 (5th Cir.), cert.
denied, 135 S. Ct. 219 (2014).
The judgment of the district court is AFFIRMED.
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