IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11264

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TONY LEE PERRY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-78-19

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

Tony Lee Perry pleaded guilty, without the benefit of a plea agreement, 

to one count of conspiring to possess intending to distribute a controlled 

substance. In the presentence report (PSR), the probation officer determined 

that Perry possessed 26 ounces, or 737.1 grams, of methamphetamine, and 

calculated his advisory guidelines sentencing range based on this drug 

quantity. Perry objected to the drug quantity finding and put on testimony at 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 25, 2016

Lyle W. Cayce

Clerk

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his sentencing hearing in an attempt to rebut it. The district court overruled 

his objection and imposed a 150-month prison term, at the high end of the 

guidelines range. Perry appeals.

The district court’s drug quantity calculation is a factual determination 

entitled to “considerable deference,” United States v. Betancourt, 422 F.3d 240, 

246 (5th Cir. 2005), and we will reverse the finding only if it is clearly 

erroneous, that is, if it is implausible in light of the record as a whole, see 

United States v. Simpson, 741 F.3d 539, 556-57 (5th Cir.), cert. denied, 

134 S. Ct. 2318 (2014).

Perry first argues that the PSR’s finding that Brittany Barron, a 

coconspirator, provided him with 18 ounces of drugs was not sufficiently 

corroborated and that, because the probation officer did not append to the PSR

the documents she relied on, there is no way to know whether her findings bear 

a sufficient indicia of reliability to support the finding. The district court may 

rely on the information contained in the PSR if it has “an adequate evidentiary 

basis with sufficient indicia of reliability.” United States v. Fuentes, 775 F.3d 

213, 220 (5th Cir. 2014). The probation officer based her findings on the 

indictment, superseding indictment, factual resumes, investigative material 

provided by federal agents, and offense reports prepared by police officers, and

she corroborated the information during an interview with a Drug 

Enforcement Administration agent. Moreover, a review of the sentencing 

transcript reveals that Barron provided a statement to the Government that 

was memorialized in writing and that corroborated the PSR’s findings. 

Accordingly, absent any evidence to rebut it, the information in the PSR 

contained an adequate evidentiary basis and was sufficiently reliable to 

support the drug quantity determination. Cf. id. (explaining that findings in 

a PSR based on the results of a police investigation are sufficiently reliable to 

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be relied on where the defendant offers no evidence to rebut the PSR’s 

findings).

Relying on testimony he put forward at sentencing, Perry challenges as 

untrue, inaccurate, or unreliable the PSR’s finding that Barron delivered to 

him an ounce of methamphetamine per week for 14 weeks and later delivered 

to him a four-ounce quantity. Though Barron testified that she did not deliver 

methamphetamine to Perry—except for a small amount on one occasion—and 

that she has never reported otherwise, the district court found the testimony 

incredible and the findings in the PSR reliable. We defer to the credibility 

findings that the district court makes at sentencing. United States v. 

Goncalves, 613 F.3d 601, 609 (5th Cir. 2010). Especially in light of its 

determination that Barron’s testimony was not credible, the district court did 

not clearly err in concluding that Perry failed to demonstrate that the PSR’s 

finding that Barron provided him with 18 ounces of methamphetamine was 

“inaccurate or materially untrue.” Simpson, 741 F.3d at 556-57.

Perry also disputes the PSR’s finding that he twice gave four ounces of 

methamphetamine to another coconspirator, arguing that he was not involved 

in those transactions and was merely a bystander. An officer involved in the 

investigation testified at sentencing that, based on his knowledge of the drug 

world in general and of this conspiracy in particular, Perry played an active 

role in the transactions, which supports the PSR’s finding. In any event, the 

drugs that Perry gave to this coconspirator were not included in 737.1 grams 

of methamphetamine that Perry was held responsible for, so he cannot 

demonstrate that the PSR findings were materially untrue. See id. at 557. 

Accordingly, the district court did not clearly err. See id. at 556-57.

Finally, as the Government contends, any error would be harmless. The 

district court explicitly stated that even if it misapprehended the drug quantity 

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attributable to Perry, it nonetheless would have imposed the same 150-month 

prison term. It explained that in choosing this particular sentence, it 

considered mitigating factors regarding Perry’s history and characteristics, 

including his medical history and history of abuse, but determined that these 

factors were outweighed by the seriousness of the offense, the extent and 

seriousness of Perry’s criminal history, and the need to protect the public from 

Perry’s criminal activities. Thus, the Government has met the “high hurdle” 

to show that the district court would have imposed the same sentence for the 

same reasons regardless of any error in the drug quantity determination and 

resulting guidelines calculation. United States v. Ibarra-Luna, 628 F.3d 712, 

713-14 (5th Cir. 2010).

AFFIRMED.

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