United States Court of Appeals

for 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 conspiracy to possess with intent to distribute 50 grams or more of methamphetamine (“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 Circuit Rule 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opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 11, 2022

Lyle W. Cayce

Clerk

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furtherance of a drug-trafficking crime, and possession of a firearm as a felon. 

Thomas challenges an amendment to the indictment, the drug quantity 

calculation, and an obstruction-of-justice enhancement, and he avers that 

trial counsel provided ineffective assistance by failing to object to the presentence report (“PSR”). 

The Fifth Amendment provides the defendant the right to be tried 

solely on the grand jury’s allegations. Stirone v. United States, 361 U.S. 212, 

215–18 (1960). Substantive amendments to the indictment must be resubmitted 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 indictment to allege “fentanyl” was an amendment of form rather than 

substance. See United States v. Young Bros., Inc., 728 F.2d 682, 693 (5th Cir. 

1984). Although there is a pharmaceutical drug called Fentyl, the record 

shows that this was a misnomer, as there is no evidence related to Fentyl 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 fentanyl. 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 Fentyl. 

As for the drug-quantity finding, Thomas’s statements in his police 

interview, which occurred after he was advised of his Miranda rights, are sufficiently 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 drugquantity 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, 

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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 otherwise. 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 

sentence 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’stestimony was relevant to the material fact of whether his codefendant had knowledge of the drugs and supports a finding that Thomas committed perjury by attempting falsely to exculpate his codefendant. See United 

States v. Flanagan, 484 F. App’x 973, 974 (5th Cir. 2012); see § 3C1.1, comment. (n.4(B)). 

In his final issue on appeal, Thomas complains that he received ineffective assistance because his trial attorney failed to object to the drugquantity 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 supportsthe 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) (noting that counsel does not render ineffective assistance by failing to make meritless objections). Likewise, 

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hancement 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 such a 

failure. See Strickland v. Washington, 466 U.S. 668, 697 (1984). 

AFFIRMED.

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