IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11033

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JACK BAKER,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-44-1

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit 

Judges.

PER CURIAM:*

Jack Baker appeals the 420-month within-guidelines sentence that was 

imposed following his conviction for conspiracy to possess with the intent to 

distribute methamphetamine. Finding no error, we affirm. 

Baker first argues that the district court clearly erred in applying a twolevel enhancement under U.S.S.G. § 2D1.1(b)(1) based on a finding that a 

 

* 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

June 17, 2015

Lyle W. Cayce

Clerk

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firearm was possessed. Baker contends that there was no credible evidence 

that he had a firearm.

We review de novo the legal application of the Guidelines and factual 

findings for clear error. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th 

Cir. 2010). Section 2D1.1(b)(1) provides for a two-level upward adjustment to 

the defendant’s offense level “[i]f a dangerous weapon (including a firearm) was 

possessed.” § 2D1.1(b)(1). The Government can prove that the defendant 

personally possessed the weapon or that a coconspirator knowingly possessed 

the weapon and that the coconspirator’s possession was reasonably 

foreseeable. Zapata-Lara, 615 F.3d at 390.

In the instant case, the record contains evidence and the district court 

found that two of Baker’s coconspirators knowingly possessed firearms. Baker 

does not challenge the application of the enhancement on this basis. Therefore, 

he fails to show that the district court’s application of the enhancement was 

clearly erroneous. See Zapata-Lara, 615 F.3d at 390. Moreover, to the extent 

that Baker challenges the finding by the district court that he possessed a 

handgun in connection with the offense, the court’s decision to reject the 

testimony of Baker’s mother and credit the testimony of Officer Shayne Kotara 

on this issue is a credibility determination “peculiarly within the province” of 

the district court and will not be disturbed by this court. United States v. 

Goncalves, 613 F.3d 601, 609 (5th Cir. 2010) (internal quotation marks and 

citation omitted).

Baker next challenges the district court’s finding on the amount of 

methamphetamine for which he was held responsible, asserting that the 

statements by coconspirators on this issue were not credible. The evidence 

submitted by Baker at the sentencing hearing did not rebut the information in 

the Presentence Report (PSR) regarding drug quantity. Baker’s argument is 

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based solely on the speculative assertion that his coconspirators lied about the 

amounts attributable to him. In light of the information contained in the PSR 

as well as the testimony of Officer Kotara, the district court’s factual finding 

regarding drug quantity was plausible and not clearly erroneous. See United 

States v. Alaniz, 726 F.3d 586, 618-19 (5th Cir. 2013). 

Also, as to drug quantity, Baker argues that there was no reliable 

evidence to support the determination that he was responsible for actual 

methamphetamine. The PSR held Baker responsible for 180 ounces of actual 

methamphetamine, which resulted in a marijuana equivalency of 102,060 

kilograms. 

Although Baker objected to the drug quantity determination, he did not 

challenge the purity finding or argue that the quantity was incorrect on this 

basis. Because Baker’s objections did not sufficiently apprise the court of the 

basis of the challenge to the enhancement he now asserts on appeal, this issue 

is subject to plain error review. See United States v. Chavez-Hernandez, 671 

F.3d 494, 497-98 (5th Cir. 2012). 

A district court’s calculation of the quantity of drugs involved in an 

offense is a factual finding that can never constitute plain error. United States 

v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012); United States v. Betancourt, 

422 F.3d 240, 246 (5th Cir. 2005); see also United States v. Hernandez, 202 F. 

App’x 708, 711 (5th Cir. 2006). Moreover, Baker failed to provide any evidence 

to rebut the PSR’s determination regarding the purity level of the 

methamphetamine obtained by Baker. He has not shown that the district 

court committed plain error by estimating his drug quantity based on the 

purity finding in the PSR. See Alaniz, 726 F.3d at 618-19. 

Finally, Baker challenges the two-level enhancement under U.S.S.G. 

§ 2D1.1(b)(5) based on the finding that the methamphetamine was imported 

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from Mexico. He argues that there is no evidence that he knew the 

methamphetamine was imported from Mexico. Baker acknowledges that this 

issue is foreclosed in light of the decision in United States v. Serfass, 684 F.3d 

548, 549-50, 553 (5th Cir. 2012), but contends that the Serfass decision is 

wrong. 

We do not entertain this argument, as a panel of this court may not 

overrule the decision of another absent a superseding en banc or Supreme 

Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th 

Cir. 2002). The possession with intent to distribute imported 

methamphetamine “without more” subjects the defendant to the § 2D1.1(b)(5) 

enhancement. United States v. Foulks, 747 F.3d 914, 915 (5th Cir.), cert. 

denied, 135 S. Ct. 219 (2014). 

The judgment of the district court is AFFIRMED.

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