IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 intent to

distribute one kilogram of heroin, in violation of 21 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 focuses instead on the additional tenth kilogram the district court

United States Court of Appeals

Fifth Circuit

F I L E D

January 18, 2013

Lyle W. Cayce

Clerk

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.

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No. 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 quotation

marks and citation omitted). When an amount of drugs seized “does not reflect

the scale of the offense, the court shall 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 could extrapolate 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 and 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 the 18 U.S.C. § 3553

factors. These comments evince that the district court had the 240-month

sentence in mind and would have imposed it, notwithstanding the purported

error. See United States v. Harris, 597 F.3d 242, 261 (5th Cir. 2010).

Williams also argues that the district court erred when it determined drug

quantity without making an express fact finding. Because Williams did 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, the district court committed clear or

obvious error by failing to make express fact findings, given that Williams

received a sentence below the guidelines range and does not argue that an

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No. 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 enhanced

his sentence under § 2D1.1 for firearms found at the residences of his codefendants. Whether § 2D1.1 applies is a factual issue. United States v. ZapataLara, 615 F.3d 388, 390 (5th Cir. 2010). If an issue is factual and could have

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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