IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11519

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

BRANDON SHANE EUSTICE, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Defendant-appellant Brandon Shane Eustice (“Eustice”) pleaded guilty, 

without a plea agreement, to one count of conspiracy to possess with intent to 

distribute an unspecified about of methamphetamine (“meth”) in violation of 

21 U.S.C. §§ 846, 841(a) & (b)(1)(C). The district court sentenced him to 84 

months of imprisonment and three years of supervised release, which was 

below the guidelines range of 100 to 125 months. Eustice asserts three 

sentencing errors on appeal: (1) the district court erred in calculating the 

quantity of drugs attributable to him, (2) the district court erred in applying a 

sentence enhancement for maintaining a drug premises, and (3) the district 

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2020

Lyle W. Cayce

Clerk

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court erred in assigning two criminal history points for his state fraud 

conviction. We AFFIRM.

FACTS AND PROCEEDINGS

Eustice admitted that from about March 2017 through January 10, 2018, 

he knowingly and willfully conspired with others to distribute meth, and 

“[m]embers of the conspiracy used Facebook, text messages and phone calls in 

addition to face to face meetings to coordinate the sale or [sic] narcotics to each 

other and to other individuals known and unknown.” According to the PSR, 

Eustice received meth from Lawrence Boone (“Boone”) and Alicia Murfield 

(“Murfield”), which he then distributed to his own customer base in Wichita 

Falls, Texas, and the surrounding areas. The PSR held Eustice accountable for 

127.57 grams of meth that he received from Boone and 283.5 grams of meth 

that he received from Murfield, for a total of 411.07 grams of meth. 

On September 20, 2017, officers executed a search warrant at Eustice’s 

residence. According to the PSR, officers seized digital scales, meth pipes, an 

unknown quantity of meth, and “other drug paraphernalia consistent with 

drug trafficking.” On December 14, 2017, officers served an outstanding state 

warrant for Eustice at his residence. According to the PSR, subsequent to 

arresting Eustice, officers observed a glass meth pipe, digital scales with 

suspected meth residue, and a plastic baggie containing suspected meth near 

the area where Eustice had been sitting. Based on these encounters, the PSR 

applied a two-level sentence enhancement for maintaining a premises for the 

purpose of distributing a controlled substance, pursuant to U.S.S.G. 

§ 2D1.1(b)(12). After applying a three-level reduction for acceptance of 

responsibility, the PSR calculated Eustice’s total offense level as 27. 

In calculating Eustice’s criminal history score, the PSR assigned two 

criminal history points for Eustice’s state fraud conviction. Eustice pleaded 

guilty to this offense on February 9, 2017 and was sentenced to three years 

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deferred adjudication probation. On February 1, 2018, Eustice’s probation was 

revoked, he was adjudicated guilty, and he was sentenced to 255 days of 

imprisonment. Based in part on this conviction, the PSR assessed Eustice’s 

criminal history category as IV and the guideline imprisonment range as 100 

months to 125 months. 

Eustice filed objections to the PSR. Relevantly, he objected to the 

quantity of drugs attributed to him and application of the drug premises 

sentence enhancement. The probation officer filed an addendum to the PSR, 

rejecting all of Eustice’s relevant objections. Eustice then reasserted his 

objections to the PSR as objections to the PSR addendum and raised a new 

objection to the assignment of two criminal history points for his state fraud 

conviction. He argued that only one point should have been assessed, which 

would have resulted in a criminal history category of III. With respect to the 

drug quantity calculation, Eustice affirmatively stated that he did not dispute 

the amount of meth attributed to him through Boone, a concession that he 

acknowledged and “st[ood] by” at oral argument before this panel. In response,

to support the drugs attributed to Eustice through Murfield, the government 

provided text messages between Eustice and Murfield discussing numerous 

drug transactions, many of which took place at Eustice’s residence. 

At the sentencing hearing on November 13, 2018, Eustice re-urged his 

objections to the PSR and PSR addendum. The district court overruled the 

objections “for the reasons stated in the Government’s Response and the 

Addendum.” The district court adopted the probation officer’s fact findings and 

conclusions as to the appropriate guidelines calculations but varied downward 

“based upon the Defendant’s Sentencing Memorandum related to his childhood 

upbringing [and] his addiction” and sentenced Eustice to 84 months of 

imprisonment.

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DISCUSSION

I. Drug Quantity Calculation

First, Eustice challenges the district court’s calculation of the amount of 

drugs attributable to him on four grounds: (1) the calculation was based on 

unreliable and insufficient evidence, (2) the district court improperly applied

the multiplier method, (3) the district court included drugs that Eustice 

personally consumed in its calculation, and (4) the district court failed to 

discount the estimate to account for uncertainty in the calculation. The 

government agrees that Eustice preserved these issues. Therefore, we review 

the district court’s legal interpretations of the guidelines de novo and its 

findings of fact, including the calculation of drugs attributable to Eustice, for 

clear error. United States v. Clark, 389 F.3d 141, 142 (5th Cir. 2004). The 

calculation will be upheld so long as it is “plausible in light of the record as a 

whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting 

United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).

We disagree that the district court’s calculation was based on unreliable

and insufficient evidence. In arriving at a sentence, the district court may 

consider any information that has sufficient indicia of reliability to support its 

probable accuracy, including estimates of drug quantities. United States v. 

Valdez, 453 F.3d 252, 267 (5th Cir. 2006). Here, the district court considered 

the information in the PSR, the PSR addendum, Eustice’s objections, and the 

government’s responses to Eustice’s objections, including the text messages 

between Eustice and Murfield. Eustice does not challenge the 127.57 grams of 

meth that were attributed to him through Boone, which he expressly agreed to

in his objections to the PSR addendum. The 283.5 grams of meth that were

attributed to Eustice through Murfield were adequately supported by the text 

messages that the government provided in response to Eustice’s objections to 

the PSR addendum. Therefore, the total calculation of 411.07 grams of meth 

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attributable to Eustice is “plausible in light of the record read as a whole.” 

Betancourt, 422 F.3d at 246 (quoting Alford, 142 F.3d at 831).

We also disagree that the district court improperly applied the multiplier 

method. Concerns about the “multiplier method” arise when the district court 

“extrapolate[s] from a known event to predict what happened in other 

unknown events.” United States v. Kearby, 943 F.3d 969, 975 (5th Cir. 2019). 

Nowhere in the PSR is there any mention of extrapolation. Rather, the 

amounts attributed to Eustice were based on evidence regarding drug 

quantities involved in a number of transactions between Eustice and Boone 

and Murfield. 

Eustice’s argument that the district court erred by considering meth he 

purchased for personal use is similarly unavailing. In Clark, this court joined 

“every other circuit that ha[d] considered this issue” and held that a district 

court may properly consider drugs possessed by a defendant for his personal 

consumption when calculating a sentence for conspiracy to possess with intent 

to distribute. 389 F.3d at 142.

Finally, we reject Eustice’s argument that the district court erred by

refusing to discount the estimate to account for uncertainty. The drug quantity 

calculation was adequately supported, and Eustice cites no precedent 

demonstrating that reduction is required in these circumstances. 

Therefore, the district court did not clearly err in calculating the 

quantity of meth attributable to Eustice. 

II. Drug Premises Sentence Enhancement

Next, Eustice challenges the district court’s application of a two-level 

sentence enhancement for maintaining a drug premises pursuant to U.S.S.G. 

§ 2D1.1(b)(12). He argues that this was (1) procedural error because the 

district court did not consider commentary note 17 to § 2D1.1(b)(12), and (2) 

substantive error because only bare assertions supported the enhancement.

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The government agrees that Eustice preserved these arguments. Therefore, we 

review the district court’s interpretation of the guidelines de novo and its 

findings of fact for clear error. United States v. Haines, 803 F.3d 713, 743 (5th 

Cir. 2015). 

Guideline § 2D1.1(b)(12) instructs the district court to apply a two-level 

sentence enhancement “[i]f the defendant maintained a premises for the 

purpose of manufacturing or distributing a controlled substance.” The 

enhancement “applies to a defendant who knowingly maintains a premises . . .

for the purpose of manufacturing or distributing a controlled substance, 

including storage of a controlled substance for the purpose of distribution.” 

§ 2D1.1(b)(12) cmt. n.17. Although manufacturing or distributing need not be 

the sole purpose for which the premises is maintained, it must “be one of the 

defendant’s primary or principal uses for the premises, rather than one of the 

defendant’s incidental or collateral uses for the premises.” Id. “In making this 

determination, the court should consider how frequently the premises was 

used by the defendant . . . for lawful purposes.” Id.

The district court did not err procedurally. At sentencing, the district 

court need not discuss all the facts and reasoning relevant to its guidelines 

calculation. United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017). 

An adoption of the PSR’s factual findings and conclusions is sufficient as long 

as those findings and conclusions are adequate to support the sentence 

imposed. Id. In this case, the probation officer discussed commentary note 17

to § 2D1.1(b)(12) in the PSR addendum and concluded that application of the 

sentence enhancement was warranted. At the sentencing hearing, the district 

court adopted “the Probation Officer’s . . . fact findings and conclusions as to 

the appropriate Guideline calculations.” Therefore, the district court implicitly 

considered commentary note 17 to § 2D1.1(b)(12) by adopting the probation 

officer’s analysis. 

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Nor did the district court err substantively. The district court may 

consider any information with sufficient indicia of reliability when crafting a 

sentence. Valdez, 453 F.3d at 267. Here, the district court relied on the 

information in the PSR, the PSR addendum, Eustice’s objections, and the 

government’s responses to Eustice’s objections. The items that law 

enforcement seized from Eustice’s residence, including digital scales, and the 

text messages that Eustice exchanged with Murfield, which reference 

numerous drug transactions at Eustice’s residence, constitute specific sources 

of evidence with sufficient indicia of reliability to support the district court’s 

application of the enhancement. 

Therefore, the district court did not err in applying the drug premises 

sentence enhancement.

III. Criminal History

Finally, Eustice challenges the district court’s calculation of his criminal 

history score. This court reviews factual determinations made in applying the 

guidelines for clear error, but “[w]hether the sentencing guidelines apply to a 

prior conviction is a question of law, which we review de novo.” United States 

v. Valdez-Valdez, 143 F.3d 196, 197–98 (5th Cir. 1998). Here, because the 

government agrees that Eustice preserved this issue and the parties only 

dispute which guidelines apply, our review is de novo. 

Guideline § 4A1.1 instructs the district court to “[a]dd 3 [criminal 

history] points for each prior sentence of imprisonment exceeding one year and 

one month,” § 4A1.1(a), “[a]dd 2 [criminal history] points for each prior 

sentence of imprisonment of at least sixty days not counted in (a),” § 4A1.1(b), 

and “[a]dd 1 [criminal history] point for each prior sentence not counted in (a) 

or (b),” § 4A1.1(c). Section 4A1.2(a)(1) defines a “prior sentence” as “any 

sentence previously imposed upon adjudication of guilt . . . .” And § 4A1.2(b)(1) 

defines “sentence of imprisonment” as “a sentence of incarceration . . . .” 

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The government argues that Eustice’s 255-day imprisonment sentence

for his state fraud conviction, which was imposed upon adjudication of guilt 

based on the revocation of his deferred adjudication probation, falls within the 

definition of a “prior sentence of imprisonment.” In fact, § 4A1.2(k)(1)

specifically instructs that upon a revocation of probation, the district court 

should “add the original term of imprisonment to any term of imprisonment 

imposed upon revocation,” and use the resulting total “to compute the criminal 

history points for § 4A1.1(a), (b), or (c), as applicable.” 

Eustice disagrees. He argues that diversionary dispositions are always 

governed by § 4A1.2(f), which states that diversions from the judicial process 

without a finding of guilt result in no criminal history points, and “diversionary 

disposition[s] resulting from a finding or admission of guilt, or a plea of nolo 

contendere, in a judicial proceeding [are] counted as a sentence under 

§ 4A1.1(c) even if a conviction is not formally entered . . . .” According to 

Eustice, diversionary dispositions are to be handled in one of two ways: If there 

is no finding or admission of guilt, no criminal history points are assessed. 

Contrariwise, if there is a finding or admission of guilt, as there was in this 

case, one criminal history point is assessed under § 4A1.1(c). Eustice argues 

that U.S.S.G. § 4A1.1(a) and (b) are never applicable to diversionary 

dispositions. 

In Valdez-Valdez, we affirmed an assessment of two criminal history 

points pursuant to U.S.S.G. § 4A1.1(b) for a deferred adjudication sentence 

involving six years of probation and 180 days of imprisonment on work release. 

Valdez-Valdez, 143 F.3d at 197, 203. Like Eustice, the defendant contended 

that only one criminal history point should have been assessed pursuant to 

U.S.S.G. § 4A1.1(c). Id. at 201. First, the court noted that “[a] sentence of 

probation is to be treated as a sentence under § 4A1.1(c) unless a condition of 

probation requiring imprisonment of at least sixty days was imposed.” Id. at 

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202 (quoting U.S.S.G. § 4A1.2, cmt. n.2). Since the defendant “was sentenced 

to—and apparently served—180 days in jail, albeit on work release,” the court 

found that “within the contemplation of § 4A1.1(b), a condition of his probation 

required imprisonment of ‘at least sixty days,’” and the conviction therefore 

counted for two criminal history points. Id. (emphasis omitted). The court went 

on to explain that “[a] plain reading of § 4A1.1 illustrates that Valdez’s 

sentence fits squarely within subsection (b), and not within subsection (c).” Id.

The only plausible way to apply § 4A1.1 both chronologically and 

logically, is to proceed from (a) to (b) to (c): Subsection (b) applies 

only to the extent a sentence is not counted in subsection (a), and 

subsection (c) applies only to the extent a sentence is not counted 

in either (a) or (b). As no part of Valdez’s sentence is counted under 

(a), and his entire sentence is counted under (b), there is nothing 

left to count under (c). Indeed, his sentence would fall under (c) 

only if his deferred adjudication included no time to be served in 

jail.

Id. 

This case is not directly controlled by Valdez-Valdez because Eustice’s 

imprisonment sentence was imposed upon revocation of his deferred 

adjudication probation, rather than as a condition of his deferred adjudication 

probation. However, the court’s rationale in Valdez-Valdez cannot be 

reconciled with Eustice’s argument that U.S.S.G. § 4A1.1(a) and (b) are never 

applicable to deferred adjudications. Rather, applying the logic of ValdezValdez confirms that two criminal history points were properly assessed in this 

case. Eustice’s sentence of 255 days of imprisonment is a “prior sentence” 

because it was “previously imposed upon adjudication of guilt.” § 4A1.2(a)(1). 

It is also a “sentence of imprisonment” because it involves incarceration. 

§ 4A1.2(b)(1). Therefore, proceeding from § 4A1.1(a) to (b) to (c), as ValdezValdez instructs, it is clear that no part of Eustice’s sentence is counted under 

(a), his entire sentence is counted under (b), and there is thus nothing left to 

count under (c). Subsection (c) would apply only if the deferred adjudication 

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had not resulted in at least 60 days of imprisonment at the time of the federal 

sentencing. Here, Eustice’s revocation had resulted in 255 days of 

imprisonment at the time of his federal sentencing.

This interpretation of the guidelines is consistent with the Eighth

Circuit’s approach in United States v. Townsend, 408 F.3d 1020 (8th Cir. 2005). 

There, the court affirmed an assessment of two criminal history points for the 

defendant’s deferred judgment on a state burglary conviction where the 

defendant was twice found in violation and sentenced to terms of imprisonment 

totaling seventy-five days. Id. at 1025–26. The court held that these probation 

violations and resulting prison sentences were effectively probation 

revocations that fell within U.S.S.G. § 4A1.2(k)(1). Id. at 1026. Further, “[e]ven 

assuming the sentences could not be considered revocations of probation,” the 

court found that the sentences were “countable under section 4A.1.1(b)” 

because they clearly fell within the definition of “prior sentence.” Id.

Eustice is correct that the Eleventh Circuit took a slightly different 

approach in United States v. Baptiste, 876 F.3d 1057 (11th Cir. 2017), but that 

case is distinguishable. There, the defendant had a state court conviction 

described in the PSR as “[a]djudication withheld, 198 days time served.” Id. at 

1059. The court held that, “where, as here, a defendant has pled guilty to a 

prior crime and adjudication has been withheld, that disposition must be 

counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, 

regardless of whether the sentencing court purported to impose—or even 

actually imposed—198 days or no days of imprisonment.” Id. The court 

reasoned that sentences imposed upon deferred adjudications typically fall 

outside the statutory definition of “prior sentence” because no adjudication of 

guilt occurs. Id. at 1062 (citing U.S.S.G. § 4A1.2(a)(1)). The only exception is 

when a defendant pleads guilty or nolo contendere, in which case one criminal 

history point should be assessed under § 4A1.1(c). Id. Applying the statutory 

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interpretation canon “expressio unius,” the court found that the express 

inclusion of U.S.S.G. § 4A1.1(c) in § 4A1.2(f) implies the exclusion of the rest of 

§ 4A1.1, including § 4A1.1(b). Id.

This application of “expressio unius” to U.S.S.G. § 4A1.2(f) could support 

Eustice’s contention that § 4A1.1(a) and (b) are never applicable to deferred 

adjudications. However, the Eleventh Circuit only needed to apply that canon 

of construction because it concluded that the sentence at issue did not fall 

within the definition of “prior sentence” in § 4A1.2(a)(1). Here, by contrast, 

Eustice’s sentence was imposed upon adjudication of guilt—when his probation 

was revoked. It therefore falls within the definition of “prior sentence,” and 

§ 4A1.1(b) applies by its own terms—it need not be read into § 4A1.2(f), where 

Congress may have intentionally excluded it. 

Therefore, the district court properly assigned two criminal history 

points. 

CONCLUSION

For these reasons, we AFFIRM the judgment of the district court.

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