United States v. Marc Booker

Case: 18-10700 Document: 00514968003 Page: 1 Date Filed: 05/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10700 FILED
Summary Calendar May 22, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARC ELLIOT BOOKER, also known as “Tattoo”,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-158-2
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
Marc Elliot Booker pleaded guilty to one count of conspiracy to possess
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846,
and was sentenced within the guidelines range to 240 months of imprisonment
and four years of supervised release. He now appeals, arguing that the district
court clearly erred by (1) relying on a co-conspirator’s statements to determine
the drug quantity and his base offense level and (2) assigning criminal history
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10700
points to a 1990 conviction for which parole was revoked in 2001 because the
revocation was illegal.
Where a party preserves error by objecting at sentencing, this court
reviews the sentencing court’s factual findings for clear error and its
interpretation or application of the Guidelines de novo. United States v.
Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal
quotation marks and citation omitted). A presentence report (PSR) generally
bears sufficient indicia of reliability to be considered by the sentencing judge
in making factual determinations. United States v. Zuniga, 720 F.3d 587, 591
(5th Cir. 2013). If the PSR’s factual recitation bears sufficient indicia of
reliability, then the defendant has the burden of showing that the PSR is
inaccurate by introducing rebuttal evidence demonstrating that the
information is “materially untrue, inaccurate or unreliable.” Id. (internal
quotation marks and citation omitted).
Contending that his co-conspirator’s statements as reported in the PSR
and described at sentencing lacked sufficient indicia of reliability, Booker
argues that it was improper for the district court to consider them. However,
statements derived from law enforcement officers’ investigations and from co-
conspirators bear sufficient indicia of reliability. See United States v. Valdez,
453 F.3d 252, 267 (5th Cir. 2006); United States v. Vela, 927 F.2d 197, 201 (5th
Cir. 1991). Booker did not present rebuttal evidence to show that the
information was materially untrue, inaccurate, or unreliable. See Zuniga,
720 F.3d at 591. The lack of details in the statements and lack of corroboration
by other witnesses were not dispositive. See United States v. Rogers, 1 F.3d
341, 344 (5th Cir. 1993). Therefore, the district court’s drug quantity
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calculation is plausible in light of the record as a whole. See Betancourt,
422 F.3d at 246.
Next, Booker argues that the district court erred by assigning criminal
history points to his 1990 conviction based on his 2001 revocation of parole.
Generally, an offense only receives criminal history points if it was imposed
within 15 years of the commencement of the instant offense. See U.S.S.G.
§ 4A1.2(e)(1). However, “[r]evocation of probation, parole, supervised release,
special parole, or mandatory release may affect the time period” under which
certain sentences receive criminal history points. § 4A1.2(k)(2). “[I]n the case
of an adult term of imprisonment totaling more than one year and one month,
the date of last release from incarceration on such sentence” becomes the point
of reference for determining the 15-year period. See id. Application note 6 to
§ 4A1.2 states that “this guideline and commentary do not confer upon the
defendant any right to attack collaterally a prior conviction or sentence beyond
any rights otherwise recognized in law.”
Booker did not satisfy his burden to show the facts in the PSR were
materially untrue, inaccurate, or unreliable by presenting any rebuttal
evidence demonstrating that he was not in custody for a parole violation
relating to the 1990 conviction in October 2001. See Zuniga, 720 F.3d at 591.
To the extent he seeks to collaterally attack his sentence, he may not do so.
See United States v. Longstreet, 603 F.3d 273, 277 (5th Cir. 2010). The district
court’s finding that Booker was in custody in October 2001 in relation to the
1990 conviction is plausible in light of the record as a whole and therefore is
not clearly erroneous. See Betancourt, 422 F.3d at 246.
Accordingly, the judgment of the district court is AFFIRMED.
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