United States v. Barton

Case: 22-50204 Document: 00516703731 Page: 1 Date Filed: 04/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 6, 2023
No. 22-50204 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Cory Joe Barton,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-37-1
______________________________
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam: *
Cory Joe Barton appeals his sentence of 335 months’ imprisonment
for conspiracy to possess with intent to distribute at least 500 grams of
methamphetamine. For the following reasons, we AFFIRM.
On April 13, 2021, Cory Joe Barton was indicted for conspiracy to
possess with intent to distribute and conspiracy to distribute at least 500
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50204
grams of a mixture or substance containing a detectable amount of
methamphetamine, pursuant to 21 U.S.C. § 841(a)(1). Barton pleaded guilty
on July 13, 2021. On September 29, 2021, the United States Probation Office
submitted an addendum revising the Presentence Investigation Report (the
“PSR”). The PSR states that Barton was arrested on November 11, 2020,
while in possession of approximately one kilogram of methamphetamine.
The PSR also states that, during a proffer with the FBI, a methamphetamine
distributor, Oscar Negrete, identified Barton as an individual to whom he had
sold methamphetamine on multiple occasions. Negrete estimated that he had
provided Barton with “15 kilograms, probably more” of methamphetamine.
The PSR states that an analysis of the methamphetamine found in Barton’s
possession was determined to be 77 percent pure, resulting in 713 grams of
methamphetamine (actual). The PSR also estimates the purity of the 15
kilograms of methamphetamine Negrete claimed to have sold Barton based
on purity tests that had been conducted on methamphetamine seized by law
enforcement from another dealer who had been purchasing
methamphetamine from Negrete. The PSR calculates that the average purity
of this seized methamphetamine was 88 percent, resulting in 13.2 kilograms
of methamphetamine (actual). According to the PSR, Barton should be held
accountable for 13.91 kilograms of methamphetamine (actual), adding both
methamphetamine (actual) amounts that it attributes to him. Relying, in part,
on the methamphetamine it says is attributable to Barton, the PSR calculates
that he should be subject to an imprisonment range of 292 to 365 months
based on the sentencing guidelines. At sentencing, the district court accepted
the PSR’s findings and sentenced Barton to 335 months’ imprisonment.
Barton raises two issues on appeal, both relating to the reliability of
facts on which the district court relied in imposing its sentence. We review
the district court’s factual findings for clear error. United States v. Barfield,
941 F.3d 757, 761 (5th Cir. 2019). “There is no clear error if the district
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court’s finding[s] [are] plausible in light of the record as a whole.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per curiam)).
“Generally, a PSR bears sufficient indicia of reliability to be considered as
evidence by the sentencing judge in making factual determinations.” United
States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir.2012)). “If the factual recitation [in the
PSR] lacks sufficient indicia of reliability, then it is error for the district court
to consider it at sentencing—regardless of whether the defendant objects or
offers rebuttal evidence.” Id. (alteration in original) (quoting Harris, 702
F.3d at 231). “But if the factual recitation in the PSR bears sufficient indicia
of reliability, then the ‘defendant bears the burden of demonstrating that the
PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court
may properly rely on the PSR and adopt it.’” Id. (quoting United States v.
Ollison, 555 F.3d 152, 164 (5th Cir.2009)). “Mere objections to [a PSR’s]
supported facts are generally insufficient.” Harris, 702 F.3d at 230.
First, Barton argues that there is no factual basis to connect him with
the additional 15 kilograms of methamphetamine. Specifically, he contends
that the PSR was improperly revised “outside the regular order of the
presentence investigation report process” to include those facts concerning
the additional 15 kilograms of methamphetamine. According to Barton, these
facts should not have been considered by the district court as they only
became part of the PSR through a faulty revisionary process. But Barton fails
to identify how that process was in error. “At least 7 days before sentencing,
the probation officer must submit to the court and to the parties the
presentence report and an addendum containing any unresolved objections,
the grounds for those objections, and the probation officer’s comments on
them.” Fed. R. Crim. P. 32(g). Contrary to Barton’s reading, this rule
did not prohibit the United States Probation Office from revising the PSR on
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its own. And Barton was still afforded an opportunity to object to the PSR in
accordance with this rule; indeed, the PSR notes Barton’s objection to it
calculating the methamphetamine’s purity. Accordingly, the method by
which these facts were added to the PSR does not taint their reliability. The
facts connecting Barton to the 15 kilograms of methamphetamine bear
sufficient indicia of reliability as well. The PSR makes this connection based
on Negrete’s statements that he sold Barton methamphetamine on multiple
occasions, which eventually amounted to “15 kilograms, probably more.” An
FBI special agent later confirmed this information at Barton’s sentencing
hearing. The burden was thus on Barton to present rebuttal evidence—
beyond an objection—which he did not do. See Zuniga, 720 F.3d at 591.
Therefore, the district court did not err in relying on the PSR.
Second, Barton asserts that the factual bases underlying the PSR’s
purity calculations are deficient. Similar to his previous argument, Barton
contends that all facts concerning the purity of methamphetamine that were
added to the PSR during its revision should be discounted. Barton also
challenges the methodology by which the PSR estimated the purity of the 15
kilograms of methamphetamine. As we have already ruled, there was no error
in how the PSR was revised. There are also sufficient indicia of reliability
underlying the PSR’s purity calculation. “A district court may estimate drug
quantity.” United States v. Lee, 966 F.3d 310, 327 (5th Cir. 2020). “It can
base its findings on ‘any information that has “sufficient indicia of reliability
to support its probable accuracy,” including a probation officer’s testimony,
a policeman’s approximation of unrecovered drugs, and even hearsay.’” Id.(quoting United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005)).
Here, the PSR estimates the purity of the 15 kilograms of methamphetamine
based on the purity of methamphetamine seized from an associate of Barton,
Ethan Eli Tinney, who was also being supplied by Negrete during the period
of Barton’s offending conduct. Specifically, the PSR calculates the average
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purity of methamphetamine seized from Tinney on three separate occasions,
calculating an average purity of 88 percent and imputing this purity level to
the 15 kilograms of methamphetamine it attributes to Barton. This estimation
is supported by the record, including the facts presented in the PSR and their
verification through the testimony provided by the FBI special agent at
Barton’s sentencing hearing. Barton fails to rebut these facts; consequently,
we conclude that the court’s findings were not a product of clear error.
AFFIRMED.
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