United States v. Noe Davalos-Cobian

714 F. App'x 371
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 20, 2017
Docket16-11693
StatusUnpublished
Cited by1 cases

This text of 714 F. App'x 371 (United States v. Noe Davalos-Cobian) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Noe Davalos-Cobian, 714 F. App'x 371 (5th Cir. 2017).

Opinion

PER CURIAM: *

Defendant-Appellant Noe Davalos-Cobi-an pleaded guilty to conspiracy to distribute methamphetamine. The calculation of the quantity of drugs attributed to him at sentencing was based on a conversion of the monetary value he received for the liquid methamphetamine that he had distributed. The formula used for that conversion calculated the total quantity of methamphetamine distributed based on the dollar value of one kilogram of liquid methamphetamine. The methamphetamine had been distributed in crystalline form, so the resulting amount was then multiplied-by the average purity percentage from samples of crystalline methamphetamine previously seized from a co-conspirator that had been converted from liquid methamphetamine.

Davalos-Cobian appeals the calculation of the relevant conduct attributed to him. We conclude that the district court erred in calculating his sentence and VACATE Davalos-Cobian’s sentence and REMAND for resentencing.

I.

Davalos-Cobian pleaded guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. He supplied liquid methamphetamine, which he had acquired from an undisclosed source in Mexico, to a distributor here, Estevan Sidon-Gonzalez. Davalos-Cobian was paid by Sidon-Gonzalez or his couriers. Sidon-Gonzalez then converted the liquid methamphetamine to the crystalline form for distribution. On two occasions, task force officers working with the Drug Enforcement Agency intercepted phone calls between Davalos-Cobian and Sidon-Gonzalez during which they discussed the amounts due. The amounts discussed during the phone calls totaled $54,500.

The probation office prepared a Presen-tence Investigation Report (PSR) after Davalos-Cobian pleaded guilty. There was no drug seizure in the case, so the probation office calculated the approximate quantity of the controlled substance to determine Davalos-Cobian’s base offense level. In doing so, the probation office divided the $54,500 discussed on the phone calls by $8,000, which was the average price paid by Sidon-Gonzalez to Davalos-Cobian for a kilogram of liquid methamphetamine. That formula yielded a total of 6.81 kilograms of liquid methamphetamine as the relevant quantity. The liquid methamphetamine received by Sidon-Gonzalez was not in “user form,” so Sidon-Gonzalez would convert it to crystalline form. The average purity of the crystalline methamphetamine distributed by Sidon-Gonzalez was 92.1 percent based on the samples seized. The average purity of the liquid methamphetamine samples seized from another co-conspirator, Jesus Sidon, was 48.6 percent.

To calculate the total amount of methamphetamine for which Davalos-Cobian was accountable, the probation office multiplied the 6.81 kilograms of liquid methamphetamine by the 92.1 percent average purity of the crystalline methamphetamine samples seized from Sidon-Gonzalez. The resulting distribution attributed to Dava-los-Cobian in the PSR was 6.27 kilograms of “methamphetamine actual.” The base offense level for an offense involving 4.5 kilograms or more of methamphetamine actual, as calculated under United States Sentencing Guideline § 2D1.1, is 38.

Davalos-Cobian objected to the purity percentage from the crystalline form of the methamphetamine being applied to the liquid methamphetamine base. He argues that if there were no conversion to methamphetamine actual, the resulting base offense level would have been lower. He also objected to the use of the purity percentage from another co-conspirator’s samples, contending there was no indication that those samples were derived from or representative of the liquid methamphetamine base that he had distributed.

The district court overruled Davalos-Co-bian’s objections and adopted the PSR. The district court sentenced Davalos-Cobi-an to 262 months imprisonment, which is at the low end of the guideline range applied by the district court. At the sentencing hearing, the district court stated: “[G]iven the sophisticated nature of the defendant’s role in this case and given the expansive nature of the conspiracy as a whole, this is the sentence I otherwise would impose ... so even if I’m wrong as to the objections, this is the sentence I otherwise would impose.” Davalos-Cobian’s counsel objected at sentencing to the reasonableness of the sentence. Davalos-Cobi-an then timely appealed.

II.

When a defendant preserves a sentencing error in the district court, we review that court’s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The sentencing court’s calculation of the quantity of drugs is a factual finding that we review for clear error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A factual finding is clearly erroneous “only if, based on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.” United States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014) (citation omitted). There also must be sufficient indicia of reliability in the calculation of relevant conduct that a multiplier estimate is “reasonably representative” of the actual conduct. See United States v. Cabrera, 288 F.3d 163, 172 (5th Cir. 2002); see also United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir. 1992).

Davalos-Cobian argues that the sentencing court erred in calculating his relevant conduct because he had handled only liquid methamphetamine. He insists that the drug quantity attributed to him should not have been calculated using the quantity of methamphetamine actual. Davalos-Cobian also argues that the sentencing court erred in using the 92.1 purity percentage in the calculation, as the PSR did not establish that Sidon-Gonzalez’s samples were derived from the liquid methamphetamine that he had received from Davalos-Cobian. Davalos-Cobian contends that if any purity percentage were to be applied, it should have been the lower purity percentage of 48.6 determined from Jesus Sidon’s liquid samples.

“The district court’s factual findings of the amount of drugs involved must be supported by what it could fairly determine to be a preponderance of the evidence” that has “sufficient indicia of reliability.” Sherrod, 964 F.2d at 1508. Here, the district court adopted the PSR, which attributed to Davalos-Cobian a drug quantity based on the form in which his co-conspirator distributed the methamphetamine and not based on the form of methamphetamine that Davalos-Cobian actually distributed. Davalos-Cobian contends this was error, arguing that the PSR does not contain evidence with sufficient indicia of reliability tying the samples of crystalline methamphetamine seized from Sidon-Gon-zalez to the liquid methamphetamine Da-valos-Cobian distributed. We agree.

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714 F. App'x 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-noe-davalos-cobian-ca5-2017.