United States v. Norman McWhorter

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 2020
• Docket: 19-51011
• Status: Unpublished

Opinion

Case: 19-51011 Document: 00515491119 Page: 1 Date Filed: 07/15/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19-51011 Summary Calendar United States Court of Appeals Fifth Circuit

FILED July 15, 2020 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee

v.

NORMAN DEAN MCWHORTER,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:18-CR-260-2

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Norman Dean McWhorter pleaded guilty to conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine. He now appeals his 300-month within-guidelines sentence on grounds that the district court clearly erred in basing his guidelines range on the presentence report’s (PSR) drug-quantity calculation, which he contends lacked an adequate evidentiary basis.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-51011 Document: 00515491119 Page: 2 Date Filed: 07/15/2020

No. 19-51011

The district court’s determination of the amount of drugs attributable to a defendant is a factual finding, which this court reviews for clear error. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A district court may adopt the facts in the PSR without further inquiry if it has “an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.” United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). The defendant has the burden of showing the information in the PSR is materially untrue. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). McWhorter has not met his burden in this case. The PSR’s drug-quantity calculation had an adequate evidentiary basis with sufficient indicia of reliability, as it was based on trial testimony the district court found to be credible. See id. Because McWhorter’s rebuttal evidence does not contradict the testimony or show the facts relied on in the PSR are unreliable, the district court did not clearly err in adopting the PSR’s drug-quantity calculation. The judgment of the district court is AFFIRMED.