IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10272

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

CALEB SMITH, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:15-CR-214-2 

Before REAVLEY, OWEN, and ELROD, Circuit Judges. 

PER CURIAM:*

Caleb Smith appeals the sentence imposed following his guilty plea 

conviction for conspiracy to possess with intent to distribute a controlled 

substance. Smith contends that the district court should have held him 

accountable only for the amount of methamphetamine that was recovered from 

his person (29.6 grams on February 26, 2015) and in his presence (119.5 grams 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 26, 2017

Lyle W. Cayce

Clerk

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No. 16-10272

2 

found in the vehicle he was driving on March 3, 2015), or such amounts that 

were properly corroborated. 

This court generally reviews a district court’s finding regarding the 

applicable drug quantity for clear error and will affirm the finding as long as 

it is plausible in light of the record as a whole. See United States v. Betancourt, 

422 F.3d 240, 246 (5th Cir. 2005). “[T]he district court need only determine its 

factual findings at sentencing by a preponderance of the relevant and 

sufficiently reliable evidence.” United States v. Hinojosa, 749 F.3d 407, 415 

(5th Cir. 2014) (internal quotation marks and citation omitted). 

The district court had to find that Smith was responsible for at least 150 

grams of “methamphetamine actual” in order to find that his base offense level 

was 32. See U.S.S.G. § 2D1.1(c)(4) (150 to 500 grams of “methamphetamine 

actual”). The district court based its factual findings concerning the drug 

quantity on the information in the Presentence Report (PSR) obtained from 

reports by the Weatherford Police Department and Drug Enforcement 

Administration Officers Kevin Brown and George Courtney. The PSR 

determined that Smith should be held accountable for 373.6 grams of 

“methamphetamine actual,” including (1) 103 grams of “methamphetamine 

actual” seized from the vehicle Smith was driving on March 3, 2015,1 (2) 7 

grams of methamphetamine that Smith supplied to John Galbreaith prior to 

February 26, 2015, and (3) 280 grams of methamphetamine, which was an 

estimate based upon admissions by Smith’s codefendant, Lezli Owens, that she 

had previously purchased up to 10 ounces (280 grams) of methamphetamine a 

day from her supplier and that Smith had been present on several occasions 

when she obtained the methamphetamine; the 287 grams of 

 

1 The 119 grams of methamphetamine seized from the vehicle was determined to be 

103 grams of “methamphetamine actual.” 

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No. 16-10272

3 

methamphetamine was then reduced to 270.6 grams of “methamphetamine 

actual” using an average purity rate of 94.3 percent. 

The district court did not clearly err in determining that Smith was 

responsible for at least 150 grams of “methamphetamine actual.” Smith did 

not present any evidence at the sentencing hearing to demonstrate that the 

drug quantity was “materially untrue, inaccurate or unreliable.” See United 

States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). In the absence of such 

rebuttal evidence, the district court did not err in adopting the facts in a PSR 

without further inquiry because the facts were based on police reports which 

had “an adequate evidentiary basis with sufficient indicia of reliability.” See 

United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Because the 

drug quantity is plausible in light of the record as a whole, the district court 

did not clearly err in finding that Smith was responsible for at least 150 grams 

of “methamphetamine actual,” resulting in a base offense level of 32. See

§ 2D1.1(c)(4). See Betancourt, 422 F.3d 240 at 246. 

In addition, Smith contends that the district court erred in giving 

considerable weight to his prior arrest for transporting chemicals with intent 

to manufacture a controlled substance. Because Smith did not raise this issue 

in the district court, review is limited to plain error. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). At sentencing, the district court focused 

primarily on Smith’s extensive criminal history. The district court expressly 

stated that it was considering Smith’s prior arrest for burglary of a building

but no other arrests for unadjudicated offenses. Therefore, Smith has not 

shown that the district court committed any error, plain or otherwise. See

United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010). 

 AFFIRMED. 

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