### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 10874

UNITED STATES OF AMERICA,
Plaintiff

–

Appellee

v ersus RONNIE KEARBY,
Defendant

– Appellant

.

Appeal from the United States District Court for the Northern District of Texas

Before OWEN, Chief Judge, JONES and SMITH , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Ronnie Kearby has had more than one brush with the law

. His latest exploits led to a guilty plea of conspiracy to possess with intent to distribute methamphetamine (“meth”)

. The district court sentenced him to , among other things, 235 months. He appeals , challenging the procedural and substantive

reason a bleness of his sentence. We affirm

. United States Court of Appeals Fifth Circui t 

### FILED November 25, 2019 Lyle W. Cayce Clerk Case: 18-10874 Document: 00515213088 Page: 1 Date Filed: 11/25/2019No. 18

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2 I. During May and June 2016, Kearby daily received between one and three ounces ( 28.35 and 85.05 grams , respectively ) of meth from Nicole Her

rera , whose supplier was Pablo Morales, who had imported the drugs from Mex ico. Kearby consumed some of the meth but mainly distributed it around Dallas

- Fort Worth. He was arrested in late June 2016. Fifteen months later, he pleaded guilty ( without a plea agree ment ) of conspiracy to possess with intent to distribute meth in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846. Section 2D1.1 of the U.S. Sentencing Guidelines (“U.S.S.G.”) established Kearby’s base offense level by reference to the quantity of drugs i nvolved in his conduct. To calculate that quantity , the presentence investigation report (“ PSR ”) estimated (conservatively) that Kearby had purchased one ounce of meth per day. That estimate came from Herrera ’ s statement to investigators that she ’ d given Kearby one to three ounces per day. T he PSR multiplied that quantity by sixty days

— the period that Herrera said Kearby had participated in the conspiracy. All told, the PSR ’ s “ conservative estimate ” was 1,701 grams, yield ing a base offense level of 32. Next, the PSR applied a two

- level importation enhancement under U.S.S.G. § 2D1.1(b)(5) because the drugs had come from Mexico

. It also rec ommended a three

- level reduction for acceptance of responsibility. The net offense level was 31 , and b ecause of Kearby ’ s lengthy past, the crim inal history category was VI. T he PSR thus rec ommended a g uideline range of 188 to 235 months. Kearby objected to the PSR on three main grounds. 1 F irst, he contested

1 Kearby had a fourth objection that he doesn’t press on appeal, relating to the PSR’s Case: 18-10874 Document: 00515213088 Page: 2 Date Filed: 11/25/2019No. 18

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3 Herrera ’ s reliability in providing information for the drug

- quantity estimate. He pointed out that Herrera had faked cooperation with the Drug Enforcement Administration and duped an agent into returning her cellphone, at which point she promptly deleted her text messages from after June 2016, which destroyed critical evidence. Kearby also said that he had participated in the conspiracy for less than the sixty days Herrera alleged

. Next, Kearby objected to the importation enhancement. There was “ no evidence, ” he claimed, that he had “ ever directly or indirectly imported any [ meth ] from Mexico ” nor that he knew t he drugs were imported. Finally, he complained that he should have

rece ived a minor

- participant reduction under U.S.S.G. § 3B1.2, since he had participated for (in his view, less than) two months in a conspiracy that spanned forty

. T he probation office refused to change its recommendations. The PSR ’ s addendum noted that Herr era had been a credible and reliable source; that it was irrelevant whether Kearby knew the drugs had been imported; and that Kearby was an average, not minor, participant in the conspiracy. Fast forward to sentencing. Kearby called Special Agent Brian Fi nney, who had interviewed Herrera , hoping that Finney ’ s testimony would help show that the PSR had overestimated the quantity of drugs. Things didn ’ t go as Kearby wished . Finney confirmed that Herrera ’ s phone didn ’ t have any text messages between her and Kearby from before May 22, 2016 , and that Herrera had deleted relevant information from it

. But Finney also testified that Her

rera had stated she sold one to three ounces a day to Kearby; not all of Her

rera ’ s sales had a corresponding text message; Herrera ’ s scoops had proven reliable and accurate in Kearby ’ s and others ’ cases ; with Herrera ’ s help ,

calculation of the criminal

- history score. Case: 18-10874 Document: 00515213088 Page: 3 Date Filed: 11/25/2019No. 18

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4 investigators had tracked down many other defendants; and the government had corroborated most of Herrera ’ s stat ements . The upshot: Finney “ felt confi

dent, based on what we were able to corroborate through her Facebook and text messages, as well as our own independent investigation, that [Herrera] was being honest with us. ”
T he court overruled Kearby ’ s objec tions to the drug

- quantity calculation, the importation enhancement, and the refusal to apply the minor

- participant reduc tion. It found that the PSR had reasonably esti mated the quantity based

on “ reliable infor ma tion ” and that Herrera was a credible informant. C iting our precedent, the court concluded that the impor tation en hance ment applied regardless of Kear by ’ s knowledge

. And it adopted the PSR ’ s finding that Kearby did not deserve a minor

- participant reduction . Accordingly, it calcu

lated a g uideline range of 188 to 235 months and concluded that a 235

- month sentence was appropriate in view of Kearby ’ s criminal histor y
. Kearby appeals the sentence. He insists, among other things, that the district court erred in calculating the quantity of drugs, applying the importa

tion enhancement, denying a minor

- participant reduction, assuming the g uide

lines were mandatory, imposing an alternative sentence, and handing down a substantively unreasonable sentence.

II. We revi ew sentences for reasonableness. Gall v. United States , 552 U.S. 38, 46 (2007). “ Using a bifurcated review process, we first examine whether the district court committed any significant procedural error. If the district
court ’ s decision is procedur ally s ound, we then consider the substantive rea

son ableness of the sentence

. ” United States v. Nguyen , 854 F.3d 276, 280 (5th Cir. 2017) (citation omitted)

. Case: 18-10874 Document: 00515213088 Page: 4 Date Filed: 11/25/2019No. 18

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5 A. Kearby ’ s main assertion is that the district court procedurally erred in calculating the quantity of drugs. We begin with the contentions that he preserved in the district court.

1. Kearby challenged the reliability of the c alculation of quantity

. That cal culation “ is a factual determination , ” so we will not set it a side unless it was implausible in light of the whole record. United States v. Alford , 142 F.3d 825, 831 (5th Cir. 1998)

. “ When making factual findings for sentencing purposes, [the] district court[] may consider any information which bears sufficient indicia of reliability to support its probable accuracy. ” United States v. Harris , 702 F.3d 226, 230 (5th Cir. 2012) (per curiam) (quotation marks omitted)

. Thus, it may “ adopt facts contained in a PSR without inquiry, if those facts had an ad equate evidentiary basis and the defendant does not present rebuttal evidence

. ” United States v. Puig

- I nf ante , 19 F.3d 929, 943 (5th Cir. 1994). “ [A] district court may consider estimates of the quantity of drugs for sentencing
purposes. ” 2 First, Kearby asserts that because the government didn’t corroborate Herrera’s statements about the quantity sold to Kearby , the court clearly erred in relying on Herrera’s information. We reject that contention. If uncor rob or ated hearsay is suffi ciently reliable, a district court may rely on it in making sentencing findings. United States v. Malone , 828 F.3d 331, 337 (5th Cir. 2016). And the court can consider the statements of coconspirators such as Herrera

— even statements that are “ somewhat imprecise ”

— in calculating

2 Alford , 142 F.3d at 832 (quotation marks omitted) ; accord United States v. Medina , 161 F.3d 867, 876 (5th Cir. 1998) (“The am ount [of drugs], moreover, need not be limited to the actual quantities seized; the district judge can make an estimate.”). Case: 18-10874 Document: 00515213088 Page: 5 Date Filed: 11/25/2019No. 18

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6 drug quantity. 3 The information that Herrera supplied about Kearby was reliable. Finney noted that Herrera had helped the government track down at least fifteen other defendants and that a “ large majority ” of the information she provide d had been corroborated

. Even if investigators did not specifically corroborate her report of the quantity sold to Kearby , Kearby has failed to show that it was implausible that her statements were accurate. See Alford , 142 F.3d at 831

. Next, Kearby maintains that a better estimate is that he received meth for 39 days, not 60

. He points out that there were no text messages between him and Herrera that predated May 22, 2016 , and that he was arrested on June 29, 2016. But because the 60

- d ay finding was not implaus ible, we reject Kearby ’ s contention

. See id. Finney testified that Herrera didn ’ t associate every transaction with a text message. He also stated that some of Her rera ’ s texts from May 22 indicated that Herrera and Kearby had had “ prior contact about [ meth ]

. ” Thus , the 60

- day finding wasn ’ t clearly erroneous. Finally , Kearby attacks Herrera ’ s general credibility as a source . He notes that she destroyed evidence and claims she had a motive to li e to “ receive reductions in her own sentence

. ” Kearby forgets, however, that we defer to a sentencing court ’ s credibility determinations

. 4 The district court carefully
ques tioned Finney about Herrera before concluding that she was cred ible

.

3 Alford , 142 F.3d at 832; a ccord United States v. Cantu

- Ramirez , 669 F.3d 619 , 629 (5th Cir. 2012) (affirming reliance on coconspirator’s testimony in calculating the quan tity of drugs involved in an offense); see also United States v. Rico , 864 F.3d 381, 386 (5th Cir. 2017 ) ( “Statements by coconspirators are sufficiently reliable to form the basis of a finding.”).

4 See United States v. Perez , 217 F.3d 323, 331

– 32 (5th Cir. 2000) (“At the sentencing hearing, the district court adopted the recommendations in the PS[R] in their entirety and, in large measure, made credibility assessments .

. . . We defe r to the trial court’s superior position in making such credibility calls.”) ; United States v. Sotelo , 97 F.3d 782, 799 (5th Cir. 1996) (“Credibility determinations in sentencing hearings are peculiarly within the province of the trier

- of

- fact.” (quotation marks omitted))

. Case: 18-10874 Document: 00515213088 Page: 6 Date Filed: 11/25/2019No. 18

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7 That is more than enoug h to trigger our deference

.
2. For the first time on appeal, Kearby raises several contentions related to the drug

- quantity calculation . Because they were not preserved, we exercise plain

- error review

. United States v. Jones , 489 F.3d 679, 681 (5th Cir. 20 07). The first requirement of plain error is that the “ appellant must show (1) an error or defect . . . .” United States v. Daniel , 933 F.3d 370, 382 (5th Cir. 2019) (and quotation marks omitted). There is no error, plain or otherwise. First, Kearby contends that the district court erred as a matter of law in using a “ multiplier method ” to calculate the drug quantity . He suggests that

“ [ e ] stimation of drug quantity using the ‘ multiplier ’ method i s only appropriate where a known quantity of drugs is involved in a particular occurrence .

. . and is extrapolated to other such occurrences. ” We disagree that the court applied a “ multiplier method , ” and Kearby ’ s formulation proves it

. T here was a “ know n quantity of drugs ” ( one ounce ) and

a “ known quantity of ” days ( sixty )

. Hence, unlike the courts in United States v. Betancourt , 422 F.3d 240 (5th Cir. 2005), and United States v. Cabrera , 288 F. 3d 163 (5th Cir. 2002) (per curiam) , the court did not extrapolate from a known event to predict what had happened in other unknown events

. 5 Instead, all events were “ known. ” 6 That the court had to dust off its calculator and run

5 See Betancourt , 422 F.3d at 248 (“Knowing only the amount of cocaine sold to Esparza, the district court properly used this figure as a multiplier for each dealer to whom Betancourt claimed he sold cocaine.”); Cabrera , 288 F.3d at 170

– 7 2 (affirming extrapolation of known number of immigrants smuggled on two occasions to other occasions o n which the number of immigrants wasn ’ t known)

. 6 Kearby disagrees that the quantity of drugs and number of days were “known.” But for reasons already d escribed, those estimates were reliable. Case: 18-10874 Document: 00515213088 Page: 7 Date Filed: 11/25/2019No. 18

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8 the numbers does not mean it applied some sort of “ multiplier method. ” 7
Related ly, Kearby contends that the district court erroneously failed to apply a “ discount ” “ to arrive at a more reliable estimated [drug] quantity

. ” W e reject both the premise and the conclusion. Kearby does not point to any case of ours that requires such a “ discount , ” a nd the estimate was both reliable and conservative. Finally, Kearby contends that the meth he consumed shouldn ’ t be counted “ since [2 1 U.S.C. §] 841(a)(1) makes distribution unlawful, not pur

chases. ” But he properly concedes that our precedent foreclose s that claim. E.g. , United States v. Clark , 389 F.3d 141, 142 (5th Cir. 2004) (pe r curiam)

. Accordingly, Kearby has failed to show p lain or clear error in the calculation of quantity

.
B. Kearby challenges the district court ’ s application of an importation enhancement under U.S.S.G. § 2D1.1(b)(5). That section allows a two

- level increase [i] f (A) the offense involved the importation of amphetamine or [ meth ] or the manufacture of amphetamine or [ meth ] from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under §3B1.2 (Miti gating Role)

. . . . 1. First, Kearby urges that the importation enhancement can ’ t apply as a matter of law because (1) he wasn’t aware that the drugs had been imported; 8 (2) the importation didn ’ t “ take place during the ‘ window ’ of [his] involve ment ”

7 We express no view on when a “multiplier method” might be appropriate.

8 Kearby admits that that contention is foreclosed by this court’s precedent. See United States v. Serfass , 684 F.3d 548, 552 (5th Cir. 2012). Case: 18-10874 Document: 00515213088 Page: 8 Date Filed: 11/25/2019No. 18

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9 in th e conspiracy; (3) it violates due process to apply the enhancement even where a defendant doesn ’ t know the drugs had been imported; and (4) impor

tation wasn ’ t relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B )

. Our precedent foreclose s all four contentions. As to the first two, the

“ distribution (or possession with intent to distribute) of imported [ meth ] , even without more, may subject a defendant to the § 2D1.1(b)(5) enhancement. ” United States v. Foulks , 747 F.3d 914, 915 (5th Cir. 2014) (per curiam). That is, the enhancement applies even if the distributor doesn ’ t know of the drugs ’ foreign origins. 9 So, it ’ s irrelevant whether Kearby knew the drugs had come from Mexico ; and , by the same logic, the importation needn ’ t have happen ed during the “‘ window ’ of Kearby ’ s involvement ” in the conspiracy

. Kearby ’ s due process point is equally barred. In Serfass , 684 F.3d at 553, we held that courts don ’ t violate due process in imposing the § 2D1.1(b)(5) enhancement “ without requiring knowledge of importation. ” Finally, we reject Kearby ’ s contention that the enhancement can ’ t apply because the importation

wasn ’ t relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). We dismissed the same in United States v. Croxton , 693 F. App ’ x 327, 327

– 28 (5th Cir. 2017 ) (per

cur iam), on the ground that mere distri bu tion of imported drugs, “ without more, may subject a defendant to the § 2D1.1(b)(5) enhancement. ”

2. Second, Kearby asserts that his case presents a supposedly unresolved question: W hether mere possession (with intent to distribute) of imported meth “ involve[s] the importation of

. . . [ meth ] ” under § 2D1.1(b)(5) (emphasis added) . But we have answered that question

— and not in a way that Kearby

9 Id. ; a ccord Serfass , 684 F.3d at 552 (“Thus, the § 2D1.1(b)(5) sentencing enhance

ment applies if the offense involved the importation of amphetamine or [ meth ] regardless of whether the defendant had knowledge of that importation.” (quotation mark s omitted)). Case: 18-10874 Document: 00515213088 Page: 9 Date Filed: 11/25/2019No. 18

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10 would have preferred . In United States v. Rodriguez , 666 F.3d 944, 946 (5th Cir. 2012), the defendant pleaded guilty of possession with intent to dis tribute meth , much like Kearby ’ s guilty plea of conspiracy to do the same . The defen

dant objected to the importation enhancement, compla ining that her “ offense did not involve the importation of [ meth ] , because the importation was com

plete before she came into possession. ” Id. We disagreed , noting that “ [t]he scope of actions that ‘ involve ’ the importation of drugs is larger than the sc ope of those that constitute the actual importation

. ” Id.

3. Finally, Kearby attacks the district court ’ s factual findings on the impor

tation enhancement , urging that there was insufficient evidence that the drugs had been imported

. But Kearby told the district court that he was not challenging the sufficiency of the evidence. In his written objections to the PSR, he conceded that “the evidence shows that Pablo Morales imported the [meth] from Mexico, providing it to Herrera, who t hen sold a small percentage of that [meth] to the Defendant.” And at sen tenc ing, after the court asked Kearby whether he contended that the drugs “w[ere] not imported,” Kearby clarified that he wa s not d oing so. The issue is thus waived. 10

C. Kearby conte nds that the district court procedurally erred in refusing to apply a minor

- participant reduction under U.S.S.G. § 3B1.2 (b), which allows,

10 Kearby also complains that there was insufficient evidence that he was involved with the “ manufacture of .

. . [ meth ] from listed chemicals that the defendant knew were imported unlawfully. ” U.S.S.G. § 2D1.1(b)(5). But that (understandab ly) misreads the PSR. Though t he PSR initially state d that Kearby ’ s “ offense involved the importation of [ meth ] from listed chemicals that the defendant knew were imported unlaw fully ,” that was merely
an error. The amended PSR later stated that the enha ncement applied only because “ [t]he [ meth ] the defendant obtained from Herrera was imported from Mexico. ” Case: 18-10874 Document: 00515213088 Page: 10 Date Filed: 11/25/2019No. 18

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11 among other things, a two

- level reduction “ [i] f the defendant was a minor participant in any criminal activity. ” Tha t guideline is intended to account for defendants who are “ substantially less culpable than the average participant in the criminal activity. ” Id. at cmt. n.3(A). A minor

- participant reduction is appropriate for one “ who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal

. ” 11
Whether a minor

- participant reduction is appropriate turns “ on the total ity of the circumstances

. ” U.S.S.G. § 3B1.2 cmt. n.3(C). T he district court should consider five factors concerning the defendant ’ s knowledge, planning, authority, responsibility, and benefit from the illegal scheme. See id. The court need not “ expressly weigh each factor in § 3B1.2 on the record. ” United Stat es v. Torres

– Hernandez , 843 F.3d 203, 209 (5th Cir. 2016). Instead , the court sufficiently addresses the factors if the parties cite them and proffer facts and contentions relating to them. 12 Kearby contends that the § 3B1.2 factors “ were not given individ ualized consideration. ” He maintains that because the PSR stated “ only the bare

asser tion and conclusion that ‘ the defendant was an average participant in this conspiracy , ’” t he district court “ adopted only a conclusory statement with no factual support. ” Kearby preserved that contention , so we evaluate “ the

11 Id. at cmt. n.5. This court looks to n ote 5 of the commentary to § 3B1.2 for the defi nition of a minor participant. See, e.g. , United States v. Martinez , 921 F.3d 452, 483 (5th Cir. 2019) (quoting U.S.S.G. § 3B1.2 cmt. n.5 in defining a “minor participant”).

12 Torres

- Hernandez , 843 F.3d at 209

– 10 ; accord United States v. Ramirez

- Esparza , 703 F. App’x 276, 279

– 80 (5th Cir. 2017) (per curiam) (citation and quotation marks omitted): Ramirez

- Esparza also argues that the district court erred by focusing on this one factor rather than considering all of the listed factors. We disagree. A dis trict court is not required to expressly weigh each factor in § 3B1.2 on the record. The record reveals that the district court was presented with facts and arguments implicating other listed factors both in the PSR documents, Ramirez

- Esparza ’ s written objections to the PSR, and at sen tencing. Case: 18-10874 Document: 00515213088 Page: 11 Date Filed: 11/25/2019No. 18

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12 district court ’ s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error. ” United States v. Lord , 915 F.3d 1009, 1017 (5th Cir.) , cert. d enied , 140 S. Ct. 320 (2019). The district court did not err in refusing to apply a minor

- participant reduction. Before the court rul ed , each party presented its contentions about the enhancement. The court was apprised of the relevant factors in the gov

ernment ’ s response to Kearby ’ s written objections to the PSR. See Torres

– He r nandez , 843 F.3d at 209

– 10. And, contrary to Kearby ’ s suggestions, the court did not adopt a merely conclusory assertion when it approved the PSR ’ s findings. The PSR ’ s addendum determined that Kearby “ purchased and sold [ meth ] , ” which is behavior part and parcel of a drug conspiracy. It then prop erly concluded that Kearby wasn ’ t entitled to a reduction. There is no error in the decision not to apply a minor

- participan t reduction.

D. Finally, 13 having found no procedural errors, we evaluate whether the 235

- month sentence was substantively reasonable. Nguyen , 854 F.3d at 280. Kearby thinks it wasn ’ t, but he mainly repackages his com plaints of procedural

error that we have already rejected

. 14 Compounding the problem , Kearby didn ’ t object to substantive reasonableness at sentencing , so we review for plain error. United States v. Whitelaw , 580 F.3d 256, 259

– 60 (5th Cir. 2009).

13 Kearby also contends that the district court erroneously believed that the g uidelines were mandatory and that it wrongfully imposed an alternative sentence. But “[b]ecause we do not consider arguments raised for the first time in a reply brief, we decline to address [those] issue[s].” United States v. Transocean Deepwater Drilling, Inc ., 767 F.3d 485, 492 (5th Cir. 2014)

. 14 Kearby asserts, for example, that the district court violated the Constitution in sentencing him “ on the basis of [in]accurate information ” ; that purchases for individual use shouldn ’ t have been considered; and that the court shouldn ’ t have relied on Herrera ’ s state

ments to investigators. Case: 18-10874 Document: 00515213088 Page: 12 Date Filed: 11/25/2019No. 18

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13 Under that (or any) standard, Kear by doesn ’ t overcome the “ rebut table pre

sumption of reasonableness ” of a within

- g uideline sentence like his. United States v. Smith , 440 F.3d 704, 707 (5th Cir. 2006). The sentence was reasona

ble in light of Kearby ’ s extensive criminal history , and the district court ade

quately considered the 18 U.S.C. § 3553(a) factors. Accordingly, the judg ment of sentence is AFFIRMED. Case: 18-10874 Document: 00515213088 Page: 13 Date Filed: 11/25/2019