* 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that this opinion should not be published and is not precedent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. 00-20747

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER MICHAEL KEISSLING,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-133-1

--------------------

June 18, 2001

Before JOLLY, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

Christopher Michael Keissling pleaded guilty to possession

with intent to distribute methamphetamine. At sentencing, he

objected that the full 37.9 grams of methamphetamine seized was

not intended for distribution and should not have been included

in the sentencing calculations; he argued that he intended to

sell only 2 grams with the remainder for his personal use. The

district court overruled the objection, finding Keissling’s

testimony was not credible and that he had not shown that any of

the seized methamphetamine was for his personal use.
No. 00-20747

-2-

A district court’s findings of fact are reviewed for clear

error. See United States v. Posada-Rios, 158 F.3d 832, 878 (5th

Cir. 1998). A factual finding is not clearly erroneous as long

as it is plausible in the light of the record read as a whole. 

See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). We

need not decide the question whether amounts for personal use

should be excluded from sentencing calculations for a conviction

for possession with intent to distribute because we conclude that

the district court’s factual finding was not clearly erroneous.

The district court found Keissling’s testimony was not

credible, particularly his testimony regarding the large amount

of methamphetamine he allegedly used on a daily basis. 

Credibility determinations are within the province of the

district court as trier-of-fact. See United States v. Sotelo, 97

F.3d 782, 799 (5th Cir. 1996). Keissling also admitted that he

regularly sold methamphetamine and that he intended to sell

methamphetamine to the residents of the apartment where the

seizure occurred. Although he asserted that he used

methamphetamine with the apartment residents, one resident denied

using any drugs that night and the other admitted only crack

cocaine use. Keissling also asserted that he supported his drug

habit by selling methamphetamine, but he failed to explain how he

could support his allegedly voracious drug habit by using more

drugs than he sold. Therefore, we conclude that the district

court’s inclusion of the full amount seized was not clearly

erroneous.
No. 00-20747

-3-

Keissling also argues that the indictment failed to specify

the quantity of drugs seized, violating the Fifth and Sixth

Amendments and precluding a determination of any quantity other

than the guideline minimum. He acknowledges that he did not

raise this claim below, and that review is limited to plain

error. Keissling relies on Apprendi v. New Jersey, 530 U.S. 466

(2000), but he acknowledges that this court has limited its

holding to cases in which a sentence is increased beyond the

statutory maximum. Factual determinations of the district court

concerning drug amounts used to calculate a sentence within a

statutory range are not called into question by Apprendi. See

United States v. Meshack, 225 F.3d 556, 576-77 (5th Cir. 2000). 

Keissling was informed during his rearraignment that the maximum

statutory penalty was 20 years’ imprisonment (or 240 months), and

he was sentenced to only 90 months’ imprisonment. Therefore,

Keissling has failed to show error, plain or otherwise.

The judgment of the district court is AFFIRMED.