# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50663 Summary Calendar

**United States of America,** Plaintiff

— Appellee **,**

versus **Travis Thomas, Jr.,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas No. 7:21

- CR

- 18

- 1

Before **Smith, Stewart,** and **Graves,** Circuit Judges

. **Per Curiam :**  * Travis Thomas, Jr., appeals his conviction and sentence for conspir

acy to possess with intent to distribute 50 grams or more of methampheta

mine (“meth”) , possession with intent to distribute 50 grams or more of meth, possession with intent to distribute fentanyl, possession of a firearm in

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum

stances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 11, 2022 Lyle W. Cayce Clerk Case: 21-50663 Document: 00516315696 Page: 1 Date Filed: 05/11/2022No. 21

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2 furtherance of a drug

- trafficking crime, and possession of a firearm as a felon. Thomas challenges an amendment to the indictment, the drug quantity calcu la tion, and an obstruction

- of

- justice enhancement, and he a ver s that trial coun sel provided ineffective assistance by failing to object to the presen

tence report ( “ PSR ” ).
The Fifth Amendment provides the defendant the right to be tried solely on the grand jury’s allegations. Stirone v. Un ited States , 361 U.S. 212, 215

– 18 (1960). Substantive amendments to the indictment must be resubmit

ted to the grand jury

. United States v. Huff , 512 F.2d 66, 69 (5th Cir. 1975). In this case, alleging unlawful possession of “fentyl” and amending the in dict ment to allege “fentanyl” was an amendment of form rather than sub stance

. See United States v. Young Bros., Inc. , 728 F.2d 682, 693 (5th Cir. 1984). Although there is a pharmaceutical drug called F entyl, the record shows that this was a misnomer, as there is no evidence related to F entyl or to an injectable form of fentanyl. Thomas was arrested while in possession of pills, and he received discovery alerting him that the pills contained fen

tanyl. Thomas also gave a statement that he had traded fentanyl pills, among other things, for the stolen car he was driving. He never claimed that he had prepared to meet an indictment charging him with possessing the injectable liquid form of fentanyl made in Bangladesh under the brand name Fenty l

. As for the drug

- quantity finding, Thomas’s statements in his police interview, which occurred after he was advised of his Miranda rights, are suf

ficiently reliable evidence of the quantity for those transactions. See United States v. Barfield , 941 F.3d 757, 763

– 64 (5th Cir. 2019). Although the lab report with the purity findings was excluded at trial as hearsay, the drug

quan tity calculation may be based on reliable evidence without regard to its admissibility under the rules of evidence. See U.S.S.G. § 6A1.3, p.s.; United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013); see United States v. Dinh , Case: 21-50663 Document: 00516315696 Page: 2 Date Filed: 05/11/2022No. 21

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3 920 F.3d 307, 313 (5th Cir. 2019)

. It was appropriate for the district court to extrapolate the purity level, given Thomas’s admission that a man named Alex was his sole source of supply for the drugs he delivered and mailed to Franco. See United States v. Rodriguez , 666 F.3d 944, 947 (5th Cir. 2012). Thus, Thomas has not shown that the district court’s reliance on the PSR’s calculation of purity level, and its resulting determination of the amount of actual meth attributed to Thomas, was error, plain or other wise. See United States v. Betancourt , 422 F.3d 240, 247 (5th Cir. 2005). Additionally , Thomas fails to show plain error in the imposition of a

s en tence enhancement for obstruction of justice. See U.S.S.G. § 3C1.1 . His testimony at his codefendant’s trial that the codefendant had no knowledge of the drugs was contradicted by his codefendant’s statements to police. Thomas’s testimony was relevan t to the material fact of whether his codefen

dant had knowledge of the drugs and supports a finding that Thomas com

mitted perjury by attempting falsely to exculpate his codefendant. See United States v. Flanagan , 484 F. App’x 973, 974 (5th Cir. 2012); s ee § 3C1.1, com

ment. (n.4(B)). In his final issue on appeal, Thomas complains that he received inef

fec tive assistance because his trial attorney failed to object to the drug

quantity calculation and the sentence enhancement in the PSR. Because Thomas’s post

- Miranda statements constitute sufficiently reliable evidence of the quantity , and the source of supply support s the district court’s reliance on the PSR’s calculation of purity, counsel was not deficient in failing to object to the amount of actual meth attributed to Thomas

. See United States v. Kimler , 167 F.3d 889, 893 (5th Cir. 1999) (not ing that counsel does not ren

der ineffective assistance by failing to make merit less objections). Like wise, because Thomas’s attempt to exculpate his codefendant supports the en

Case: 21-50663 Document: 00516315696 Page: 3 Date Filed: 05/11/2022No. 21

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4 hance ment for obstruction of justice, counsel was not deficient in failing to object to the enhancement. See id. Thomas has not shown that counsel was deficient in failing to object to the PSR or that he was prejudiced by s uch a failure. See Strickland v. Washington , 466 U.S. 668, 697 (1984).
**AFFIRMED**

. Case: 21-50663 Document: 00516315696 Page: 4 Date Filed: 05/11/2022