United States v. Parker

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-40811
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA PARKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-104-6
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Joshua Parker appeals the 151-month sentence imposed by the
district court following his guilty-plea conviction for
conspiracy to distribute methamphetamine.
Parker argues that the district court’s determination of the
amount of methamphetamine attributable to him was clearly
erroneous because it was not based on information having a
sufficient indicia of reliability.
The district court’s calculation of the quantity of drugs
involved in an offense is a factual determination that is
*
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this opinion should not be published and is not precedent except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.
No. 06-40811
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entitled to considerable deference and will be reversed only if
clearly erroneous. United States v. Betancourt, 422 F.3d 240,
246 (5th Cir. 2005). A factual finding is not clearly erroneous
if it is plausible in light of the record as a whole. Id. In
making the finding of the quantity of drugs attributable to a
defendant, the district court may consider any information that
has sufficient indicia of reliability to support its probable
accuracy. Id. at 247; U.S.S.G. § 6A1.3(a). Furthermore, as a
general rule, information in the presentence report is “presumed
reliable and may be adopted by the district court without further
inquiry if the defendant fails to demonstrate by competent
rebuttal evidence that the information is materially untrue,
inaccurate or unreliable.” United States v. Carbajal, 290 F.3d
277, 287 (5th Cir. 2002).
The district court did not clearly err in finding that
Parker was individually accountable for at least 500 grams of
methamphetamine. After applying a conservative estimate to
Parker’s post-arrest admissions, the district court found that
Parker had acknowledged responsibility for 483 grams. The
district court was not clearly erroneous in concluding that the
other reports about Parker provided by the PSR and Officer Frank
Saldivar’s testimony justified attributing at least 17 more grams
to him. Betancourt, 422 F.3d at 246. Parker did not adduce any
evidence to show that the district court clearly erred in
determining drug quantity for sentencing purposes or to undermine
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the material truth of the information in the PSR. United States
v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998); United States
v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005).
Parker also argues that the district court erred in failing
to apply the standard of proof beyond a reasonable doubt to the
sentencing evidence. As Parker was sentenced under an advisory
guidelines scheme following the issuance of United States v.
Booker, 543 U.S. 220 (2005), he has not shown plain error. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 432 (2005) United States v. Johnson, 445 F.3d
793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006); United
States v. Scheer, 168 F. App'x 628, 629 (5th Cir. 2006).
AFFIRMED.