IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11523

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

CHRIS SPHABMISAI, also known as "Chino," 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:16-CR-111-5 

Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. 

PER CURIAM:*

Chris Sphabmisai appeals the 200-month within-guidelines sentence 

imposed following his guilty plea conviction for conspiracy to possess with 

intent to distribute methamphetamine. Sphabmisai first challenges the 

procedural reasonableness of his sentence, arguing that the district court erred 

in determining the quantity of methamphetamine attributable to him under 

the Sentencing Guidelines. Specifically, he asserts that the presentence report 

 

* 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

August 1, 2017

Lyle W. Cayce

Clerk

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No. 16-11523

2 

(PSR) “evidence used in attributing particular drug quantities to him lacked 

the requisite indicia of reliability to support that information’s accuracy.” He 

maintains that the PSR’s drug quantity evidence was “derived solely from 

presumptively unreliable co-defendants’ statements and uncorroborated 

confidential informant information.” 

Because Sphabmisai did not raise these arguments in the district court, 

our review is limited to plain error. See United States v. Mondragon-Santiago, 

564 F.3d 357, 361 (5th Cir. 2009). The amount of methamphetamine 

attributable to Sphabmisai is a finding of fact. See United States v. Harris, 740 

F.3d 956, 966 (5th Cir. 2014). “Questions of fact capable of resolution by the 

district court upon proper objection at sentencing can never constitute plain 

error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). As such, the 

district court’s finding of the applicable drug quantity cannot constitute plain 

error. See id. Even if we were not bound by Lopez, Sphabmisai cannot show 

plain error. Sphabmisai relies on a Third Circuit’s opinion in which the Court 

found the informant’s statement regarding the quantity of drugs was 

unreliable because the informant had made vastly inconsistent statements at 

the trial of a co-conspirator. United States v. Miele, 989 F.2d 659, 664 (3rd Cir. 

1993). Miele is inapposite. In that case, the defendant had objected to the 

evidence, which required the district court to resolve the dispute under Federal 

Rule of Criminal Procedure 32(c)(3)(D). Id. The Court also noted that “no other 

witnesses testified as to specific drug quantities.” Id. at 665. In contrast, here, 

Sphabmisai did not object to the evidence. Moreover, the instant PSR 

contained other evidence that Sphabmisai had obtained specific drug 

quantities from his named co-conspirators. Thus, Miele does not demonstrate 

that the district court committed plain error. Nor would we be inclined to use 

our discretion to correct any error. 

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Sphabmisai next contends that his sentence is substantively 

unreasonable because the methamphetamine Guideline, U.S.S.G. § 2D1.1, is 

not empirically based. He did not preserve this issue in the district court and, 

thus, our review is for plain error. See United States v. Heard, 709 F.3d 413, 

425 (5th Cir. 2013). “A discretionary sentence imposed within a properly 

calculated guidelines range is presumptively reasonable.” United States v. 

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Sphabmisai’s 

contention is unavailing. The district court was not required to question the 

empirical grounding behind § 2D1.1. See United States v. Duarte, 569 F.3d 

528, 530-31 (5th Cir. 2009). Sphabmisai has therefore failed to rebut the 

presumption of reasonableness attached to his within-guidelines sentence, 

much less shown plain error. See Heard, 709 F.3d at 425; Campos-Maldonado, 

531 F.3d at 338.

The judgment of the district court is AFFIRMED. 

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