* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10079

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

KELLY KENNY

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:07-CR-80-6

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Kelly Kenny pleaded guilty to possessing methamphetamine with intent

to distribute. She was sentenced to a 63-month term of imprisonment. She

claims that the district court miscalculated her guidelines range when it held

her accountable for the actual weight of methamphetamine rather than the

weight of the mixture or substance, as the latter would have yielded a lesser

sentence. She claims that the district court also committed procedural error

when it held her accountable for all of the methamphetamine (actual) involved

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2008

Charles R. Fulbruge III

Clerk
No. 08-10079

2

in a proposed transaction at which she had not intended to be present. She

claims also that her sentence was substantively unreasonable because it was

harsher than sentences imposed on others involved in the same two

transactions.

We review sentencing decisions for abuse of discretion. United States v.

Rowan, 530 F.3d 379, 381 (5th Cir. 2008). This review process is bifurcated. Id.

(citing Gall v. United States, 128 S. Ct. 586, 596-98 (2008)). We first determine

whether the district court committed a significant procedural error. Id. If the

sentence is procedurally sound, we then consider the “substantive

reasonableness” of the sentence under an abuse-of-discretion standard. Id.

“The District Court commits a procedural error if: it miscalculates or fails

to calculate the proper Guidelines range; it treats the Guidelines as mandatory;

it imposes a sentence based on clearly erroneous facts; it fails to consider the

factors setforth in 18 U.S.C. § 3553(a); or itfails adequately to explain its chosen

sentence or any deviation from the Guidelines range.” Rowan, 530 F.3d at 381.

Even after Gall, this court’s review of a district court’s construction of the

Guidelines continues to be de novo and its review of findings of fact continues to

be for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th

Cir. 2008). “An error in applying the Guidelines is a significant procedural error

that constitutes an abuse of discretion.” United States v. Klein, 543 F.3d 206,

213 (5th Cir. 2008).

The Sentencing Guidelines direct that the base offense level be

“determined by the entire weight ofthe mixture or substance, or the offense level

determined by the weight of the . . . methamphetamine (actual), whichever is

greater.” U.S.S.G. § 2D1.1, note (B). The district court did not err in calculating

Kenny’s sentence based on the weight of the methamphetamine (actual) involved

in Kenny’s transactions. Nor did it err by calculating the sentence based on the

total amount of drugs from the two transactions. The base offense level and

adjustments thereto are to be determined on the basis of relevant conduct, which
No. 08-10079

3

includes “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant,”

§ 1B1.3(a)(1), that “were part of the same course of conduct or common scheme

or plan as the offense of conviction.” § 1B1.3(a)(2); see also § 3D1.2(d). Kenny

aided and abetted the second transaction by providing the Government’s

confidential informant with a cellular telephone number to facilitate it.

Consequently,the events of and leading to that day constituted relevant conduct

for which she is accountable even though she was not convicted of any crime

because of them. See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir.

2007) (stating that “[a]n offense need not have resulted in a conviction to

constitute relevant conduct under the guidelines”). Additionally, it is clear from

the presentence investigation report (PSR) that the total amount of drugs

desired by the confidential informant was capable of being produced for the

second transaction, although that amount was not present and seized. In the

absence of credible rebuttal evidence by Kenny, the district court was free to

adoptthe PSR’s findings as its own. See United States v. Ayala, 47 F.3d 688, 690

(5th Cir. 1995).

Nor has Kenny shown that her sentence was substantively unreasonable.

In considering an appropriate sentence, the district court should take into

account “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.”

§ 3553(a)(6). The record does not reveal the bases for the sentences later

imposed on the other defendants involved in Kenny’s two transactions. Thus,

it is unknown whether they and Kenny were indeed similarly situated with

respect to criminal history and circumstances. As a consequence, we cannot

determine whether the disparities of which Kenny complains were unwarranted.

AFFIRMED.