### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30411 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. THOMAS G. WILLIAMS, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10-CR-197-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Thomas G. Williams appeals the 240-month below-guidelines sentence he received after he pleaded guilty to conspiracy to distribute and possess with intent to distribute one kilogram of heroin and possessing with int e n t to distribute one kilogram of heroin, in violation of 2 1 U

. S .C. §§ 841(a)(1) and (b)(1)(A); 846. Williams does not contest that he is accountable for up to 10 kilograms of heroin and focuse s instead on the additional tenth kilogram the district court U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary18 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30411 Document: 00512118289 Page: 1 Date Filed: 01/18/2013No. 12-30411

extrapolated to compute his base offense level. “The district court's calculation of the quantity of drugs involved in an offense is a factual determination.” United States v. Betancourt , 422 F.3d 240, 246 (5th Cir. 2005) (internal quot atio n marks and citation omitted). When an amount of drugs seized “does not reflect the scale of the offense, the court sh a l l approximate the quantity of the controlled substance.” § 2D1.1, comment. (n.12); see Betancourt , 422 F.3d 240, 246 (5th Cir. 2005). In approximating, the district court was free to consider Williams’s relevant conduct and coul d e xtrapolate drug quantity from “any information that has sufficient indicia of reliability to support its probable accuracy . . . even hearsay.” United States v. Valdez , 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted). Whether the use of the extrapolation method is appropriate, however, depends on the facts of the particular case. See, e.g., Betancourt , 422 F.3d at 246-47. We need not reach whether the district court erred when it extrapolated the additional one kilogram of heroin because the purported error was harmless. The district court stated that it had considered Williams’s one prior conviction for manslaughter at age 17 a n d otherwise lack of a long-term criminal record, his heavy involvement in the longstanding heroin conspiracy, and the profit he received and that a 240-month sentence would fulfill th e 18 U.S.C. § 3553 factors. These comments e vi n c e that the district court had the 240-month

s e n t e n c e in mind and would have imposed it, notwithstanding the purported

error. See United States v. Harris , 597 F.3d 242, 261 (5th Cir. 201 0). Williams also argues that the district court erred when it determined drug quantity without making an express fact finding. Because Williams di d not object to the district court’s failure to make express fact findings, his argument is reviewed for plain error. See United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009). Even if, for the sake of argument , th e di s t rict court committed clear or obvious error by fa i l i n g t o make express fact findings, given that Williams received a sentenc e b elow the guidelines range and does not argue that an 2 Case: 12-30411 Document: 00512118289 Page: 2 Date Filed: 01/18/2013No. 12-30411

adequate explanation would have change his sentence, he cannot show that the purported error affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009); United States v. Mondragon-Santiago , 565 F.3d 357, 365 (5th Cir. 2009). Williams also argues that the district court plainly erred when it e nh anced his sentence under § 2D1.1 for firearms found at the reside n c e s o f h i s codefendants. Whether § 2D1.1 applies is a factual issue. United States v. ZapataL ara , 615 F.3d 388, 390 (5th Cir. 2010). If an issue is factual and cou l d h av e been resolved in the district court on proper objection, there can never be plain

error. United States v. Rodriguez , 602 F.3d 346, 361 (5th Cir. 2010). Even so, the record supports the application of the enhancement. See § 1B1.3(a)(1)(B); Zapata-Lara , 615 F.3d at 390. AFFIRMED.

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