United States v. Scott Yrdanoff

Case: 18-10397 Document: 00514827149 Page: 1 Date Filed: 02/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-10397 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
February 7, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
SCOTT ALLEN YRDANOFF,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-193-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Scott Allen Yrdanoff appeals the 324-month, within-Guidelines sentence
imposed following his guilty-plea conviction for conspiring to possess, with
intent to distribute, a controlled substance, in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(B). He claims the district court: erred in calculating the
quantity of drugs attributable to him; and rendered an unreasonable sentence.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-10397
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
For the claimed procedural error, a district court’s drug-quantity
calculation is a finding of fact reviewed, as noted, only for clear error. United
States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A presentence
investigation report (PSR) “generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual
determinations”, and defendant bears the burden of showing the information
contained in the PSR is “materially untrue, inaccurate or unreliable”. United
States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (internal quotation marks
and citations omitted).
Although Yrdanoff challenges the credibility of his sister’s statements to
interviewing agents, which were used to calculate the drug quantity,
“[c]redibility determinations in sentencing hearings are peculiarly within the
province of the trier-of-fact”. United States v. Sotelo, 97 F.3d 782, 799 (5th Cir.
1996) (internal quotation marks and citation omitted). In making this claim,
he improperly relies upon a letter that is not in the record. In any event, he
fails to cite any evidence rebutting the PSR’s drug-quantity calculation. See
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No. 18-10397
Nava, 624 F.3d at 231. In short, he fails to show clear error. See Betancourt,
422 F.3d at 246.
The reasonableness of a sentence is reviewed, as noted, for abuse of
discretion; in addition, a sentence within the Guidelines range is presumed to
be substantively reasonable. United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). But, because Yrdanoff did not object to the
reasonableness of the sentence in district court, review is only for plain error.
E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Yrdanoff must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the reversible plain
error, but should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.
Although Yrdanoff asserts the district court failed to consider the 18
U.S.C. § 3553(a) sentencing factors and improperly presumed the
reasonableness of a within-Guidelines sentence, the record belies his
contentions; he fails to show the requisite clear or obvious error. See
Mondragon-Santiago, 564 F.3d at 361.
AFFIRMED.
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