United States v. Smiley

Opinion

Case: 21-50519 Document: 00516260672 Page: 1 Date Filed: 03/30/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED

March 30, 2022

No. 21-50519 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Don Smiley,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas No. 7:21-CR-2-1

Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:*

Don Smiley appeals the sentence imposed for his conviction of possession with intent to distribute five grams or more of actual methamphetamine (“meth”). The district court assessed a base offense level of 32 under U.S.S.G. § 2D1.1(c)(4) after finding that Smiley was responsible for no less

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 21-50519 Document: 00516260672 Page: 2 Date Filed: 03/30/2022

No. 21-50519

than 344 grams of actual meth, a total that included 6.5 grams that were seized in a controlled buy. Smiley challenges the district court’s extrapolation of the purity level of the 337.5 grams of unseized meth.

We review for clear error the district court’s finding regarding purity.

See United States v. Lucio, 985 F.3d 482, 485 (5th Cir.), cert. denied, 142 S. Ct. 177 (2021). Based on Smiley’s statements in his police interview, it was reasonable for the court to infer that depending on availability, he interchangeably obtained a comparable purity of meth from his two sources. See id. at 488; United States v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012). Additionally, there is no evidence indicating that the purity level of the unseized meth actually was dissimilar to the 97% purity of the meth in the controlled buy. Based on the record as a whole, it was plausible for the district court to find that the disputed 337.5 grams of meth had a level of purity sufficient to support a base offense level of 32 under § 2D1.1(c)(4). Thus, the finding was not clearly erroneous. See Lucio, 985 F.3d at 485–88; Rodriguez, 666 F.3d at 947.

AFFIRMED.