United States v. Sherry Walter

Case: 16-10645 Document: 00513931021 Page: 1 Date Filed: 03/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10645 FILED
Summary Calendar March 29, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHERRY WALTER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-129-9
Before KING, DENNIS and COSTA, Circuit Judges.
PER CURIAM: *
Sherry Walter appeals the 240-month sentence imposed for her
conviction of conspiracy to possess with intent to distribute methamphetamine.
See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. We affirm.
As Walter concedes, precedent forecloses her claim that it was clear error
to enhance her base offense level because she trafficked in imported
methamphetamine. See United States v. Foulks, 747 F.3d 914, 914-15 (5th Cir.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10645
2014). Regarding her claim that it was clear error to enhance her base offense
level under U.S.S.G. § 2D1.1(b)(12), Walter failed to rebut the information
contained in the presentence report (PSR) and the testimony of a law
enforcement officer showing that one of the main purposes for maintaining her
residence was the distribution of methamphetamine. See United States v.
Haines, 803 F.3d 713, 745 (5th Cir. 2015); United States v. Ayala, 47 F.3d 688,
690 (5th Cir. 1995); see also § 2D1.1(b)(12). None of the evidence offered by
Walter justifies a conclusion that the district court’s determination that drug
dealing was a principal use of the premises is implausible “in light of the record
as a whole” or creates “the definite and firm conviction that a mistake has been
committed.” United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009)
(internal quotation marks and citation omitted).
Additionally, Walter fails to establish that the district court clearly erred
because it assigned her base offense level on the basis of what she sees as
improperly extrapolated drug quantity. See U.S.S.G. § 2D1.1(a)(5), (c)(2). In
estimating drug quantity, a court “may extrapolate the quantity from any
information that has sufficient indicia of reliability to support its probable
accuracy.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal
quotation marks and citation omitted); see also United States v. Rodriguez, 666
F.3d 944, 947 (5th Cir. 2012). Given the unrebutted information contained in
the PSR and its second addendum pertaining to the purity rates of four test
samples obtained from Walter’s ultimate supplier, the district court did not
clearly err in determining that Walter’s methamphetamine was of like purity
and in determining total quantity on that basis. See Valdez, 453 F.3d at 267.
Walter’s claim that the 240-month sentence—a variance below the
guidelines sentencing range of 360 to 480 months—is substantively
unreasonable is without merit. The district court made it clear that the
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No. 16-10645
sentence was selected in light of the factors set forth in 18 U.S.C. § 3553(a). In
reviewing a variance, we “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall v. United States, 552 U.S. 38, 51 (2007); see United States v.
Duarte, 569 F.3d 528, 531 (5th Cir. 2009). Walter has provided us with no
basis for disturbing the district court’s exercise of discretion in evaluating the
§ 3553(a) factors. See Gall, 552 U.S. at 51.
AFFIRMED.
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