United States v. Herbert Goldsmith

Case: 10-30718 Document: 00511548566 Page: 1 Date Filed: 07/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2011
No. 10-30718
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERBERT V. GOLDSMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:09-CR-279-2
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Herbert V. Goldsmith challenges his guilty plea for one count of conspiracy
to possess with intent to distribute 50 grams or more of cocaine base or crack, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Goldsmith argues that the factual
basis to which he pleaded guilty was insufficient to prove that (1) he participated
in a conspiracy (2) to distribute 50 grams or more of crack cocaine because the
factual basis established nothing more than a buyer-seller relationship between
Goldsmith and a codefendant and mentioned only powder, instead of crack,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-30718 Document: 00511548566 Page: 2 Date Filed: 07/22/2011
No. 10-30718
cocaine. He also argues that his sentence was procedurally unreasonable
because the district court erred in adopting a one-to-one conversion ratio for
converting powder to crack.
Both of these issues are reviewed for plain error. See United States v.
London, 568 F.3d 553, 558 (5th Cir. 2009); see also United States v. Ronquillo,
508 F.3d 744, 748 (5th Cir. 2007). To establish plain error, an appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.An examination of the indictment and the record establishes that the
district court did not err, plainly or otherwise, in concluding that Goldsmith’s
conduct satisfied every element of the conspiracy drug charge. See United States
v. Marek, 238 F.3d 310, 314 (5th Cir. 2001). The factual basis states that agents
intercepted a telephone call wherein Goldsmith and a codefendant talked about
Goldsmith selling powder cocaine to the codefendant, “which would be cooked
into crack for distribution,” and that Goldsmith sold approximately 77 kilograms
of powder cocaine to the codefendant and another individual. Additionally, the
indictment provided that Goldsmith and numerous other codefendants “did
knowingly and intentionally conspire and agree together to possess with the
intent to distribute 50 grams” of cocaine base or crack. At his guilty-plea
hearing, Goldsmith admitted that he had participated in a conspiracy to
distribute 50 grams or more of crack cocaine. Based on the foregoing,
Goldsmith’s guilty plea was supported by a sufficient factual basis. See Marek,
238 F.3d at 314.
Likewise, Goldsmith has not established that the district court erred by
applying a one-to-one ratio when converting powder cocaine to crack cocaine and
consequently assigning him a base offense level of 38, pursuant to U.S.S.G.
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No. 10-30718
§§ 2D1.1(a)(5), (c)(1). Although this court has not adopted a particular
conversion ratio for cases involving crack cocaine, this court has affirmed cases
involving a range of conversion ratios. See United States v. Booker, 334 F.3d
406, 413-14 & n.3 (5th Cir. 2003) (approving a 1-to-.5 ratio); United States v
Fulgencio, No. 09-30369, 2011 WL 1773545, *1 (5th Cir. May 10, 2011)
(unpublished) (affirming a one-to-one ratio because applying the 1-to-.5 ratio set
forth in Booker still resulted in greater than 4.5 kilograms of crack); United
States v. Rodriguez, 305 F. App’x 206, 208 (5th Cir. 2008) (affirming on plain
error review a case applying one-to-one conversion ratio because application of
1-to-.5 ratio could result in the imposition of the same sentence); United States
v. Britton, 225 F. App’x 219, 222 (5th Cir. 2007) (holding that the use of a 1-to-
.75 ratio was reasonable).
Goldsmith admitted that he sold 77 kilograms of powder cocaine to a
codefendant and another individual. Even if the district court should have
applied the “conservative and realistic” 1-to-.5 conversion ratio used in Booker,
the district court did not plainly err in determining that Goldsmith’s offense
involved more than 4.5 kilograms of crack cocaine. Application of the Booker
ratio would yield approximately 38.5 kilograms of crack, well above the 4.5
kilogram threshold.
Additionally, Goldsmith has not shown that but for the district court’s
error, he would have received a lesser sentence. United States v. Villegas, 404
F.3d 355, 364 (5th Cir. 2005). Therefore, Goldsmith has not established that any
error affected his substantial rights. Id.AFFIRMED.
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