IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10842

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DONALD RAY COX, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-50-1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In 2015, Donald Ray Cox, Jr. pleaded guilty to possession, with intent to 

distribute, methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 

(b)(1)(C). The presentence investigation report (PSR) originally recommended, 

inter alia, Cox was accountable for 5.15 kilograms of methamphetamine, 

resulting in a base-offense level of 34. Following several enhancements and 

reductions, not challenged on appeal, Cox’s total-offense level was 33, with a 

 

* 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

June 9, 2016

Lyle W. Cayce

Clerk

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No. 15-10842

2

criminal history category of I, which resulted in an advisory-SentencingGuidelines range of 135 to 168 months’ imprisonment.

Multiple addenda were issued for the PSR. Relevant here, the second 

stated recent tests reflected the average purity of the methamphetamine from

Cox’s supplier was 96.58 percent. As a result, the PSR recommended Cox be 

held accountable for 4.97 kilograms of methamphetamine actual, which 

resulted in an increased base-offense level of 38. Cox’s revised total-offense 

level was 37, resulting in an advisory sentencing range of 210 to 240 months’ 

imprisonment. Cox objected to the second addendum, asserting, inter alia, the 

laboratory tests upon which it relied were insufficient to prove the 

methamphetamine’s purity. In rejecting those contentions, a third addendum

maintained Cox presented no evidence in support of his challenge.

At sentencing, the court overruled Cox’s objections; adopted the PSR’s 

factual findings, including those in the second addendum; granted a two-level 

safety-valve reduction, resulting in a sentencing range of 168 to 210 months’ 

imprisonment; and sentenced Cox to 190 months’ imprisonment. In 

challenging that sentence, Cox asserts the court erred in adopting the PSR’s 

factual findings regarding the methamphetamine’s purity.

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the advisory Guidelines-sentencing range for use in 

deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 

(2007). In that respect, for issues preserved in district court, its application of 

the Guidelines is reviewed de novo; its factual findings, only for clear error. 

E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

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“Factual findings are not clearly erroneous if they are plausible in light 

of the record read as a whole.” United States v. Ayala, 47 F.3d 688, 690 (5th 

Cir. 1995). And, a PSR “generally bears sufficient indicia of reliability to be 

considered as evidence by the trial judge in making the factual determinations 

required by the sentencing guidelines”. United States v. Alford, 142 F.3d 825, 

831–32 (5th Cir. 1998) (internal quotation marks omitted). Therefore, Cox 

“bears the burden of presenting rebuttal evidence to demonstrate that the 

information in the PSR is inaccurate or materially untrue”. United States v. 

Scher, 601 F.3d 408, 413 (5th Cir. 2010). In the absence of such evidence, the 

court may rely upon the PSR and adopt its factual findings. E.g., Ayala, 47 

F.3d at 690.

Cox asserts the court clearly erred by adopting the PSR’s use of purity 

levels associated with methamphetamine seized in 2013 and 2014 from Cox’s 

supplier to extrapolate the purity of the methamphetamine Cox possessed 

between 2008 and 2010. Although Cox called witnesses at sentencing who 

testified there were no purity tests performed on the methamphetamine he 

possessed, he failed to present any evidence to rebut the finding the drugs 

seized from him were not significantly less pure than those seized in 2013 and 

2014. Moreover, the court was entitled to “extrapolate the [drug] quantity from 

any information that has sufficient indicia of reliability to support its probable 

accuracy”. United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal 

quotation marks omitted). Accordingly, Cox has not established the court’s

drug-quantity determination was clear error. E.g., United States v. Sullivan, 

584 F. App’x 203, 203–04 (5th Cir. 2014).

AFFIRMED.

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