IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10152

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CYNTHIA POLLET,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-249-6

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Cynthia Pollet pleaded guilty to conspiring to possess with intent to 

distribute methamphetamine. Her offense level was based on a relevant drug 

quantity of more than five but less than fifteen kilograms of 

methamphetamine. On appeal, she contends that the admitted facts 

established only a buyer-seller relationship rather than a conspiracy, and that 

* 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

December 18, 2014

Lyle W. Cayce

Clerk

 

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No. 14-10152

there was no reliable evidence that her crime involved eleven kilograms of 

methamphetamine. Reviewing both claims for plain error, we affirm.

Because she did not raise these claims in the district court, Pollet must 

show that any error was “clear or obvious, rather than subject to reasonable 

dispute,” and that the error affected her substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If she does so, we have discretion to correct 

the error if it seriously affects the integrity, fairness, or public reputation of 

the court proceedings. Id.

To pass the first test concerning her contention that there was no factual 

basis for her plea, Pollet must show that “it is clear or obvious what the 

government must prove to establish the offense, and, notwithstanding that 

clarity, the district court [accepted her plea] without an adequate factual 

basis.” United States v. Alvarado-Casas, 715 F.3d 945, 951 (5th Cir. 2013)

(internal quotation marks and citation omitted), cert. denied, 134 S. Ct. 950 

(2014). When “the district court’s factual basis finding is subject to reasonable 

dispute” there is no clear or obvious error. Id. at 952.

To determine whether there was a factual basis for the plea, the district 

court was required to “compare: (1) the conduct to which the defendant admits; 

and (2) the elements of the offense charged in the indictment.” United States 

v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). The elements of the charged 

conspiracy crime “are (1) an agreement with another person; (2) knowledge of 

the agreement; and (3) voluntary participation in the conspiracy.” United 

States v. Cervantes, 706 F.3d 603, 617 (5th Cir. 2013). The requisite agreement 

need not be explicit or formal but may be inferred from the circumstances. 

United States v. McCullough, 631 F.3d 783, 792 (5th Cir. 2011). In reviewing 

Pollet’s claim for plain error, we examine the entire record for facts supporting 

the plea; this includes the factual findings in a presentence report (PSR) and 

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“fairly drawn inferences from the evidence presented both post-plea and at the 

sentencing hearing.” United States v. Trejo, 610 F.3d 308, 317 (5th Cir. 2010)

(internal quotation marks and citations omitted).

A simple “buyer-seller relationship, without more, will not prove a 

conspiracy.” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993). “The 

buyer-seller exception prevents a single buy-sell agreement, which is 

necessarily reached in every commercial drug transaction, from automatically 

becoming a conspiracy to distribute drugs.” United States v. Delgado, 672 F.3d 

320, 333 (5th Cir. 2012). The rule applies to “mere acquirers and street-level 

users.” Id.

The admissions and the facts adopted from the PSR establish that Pollet 

regularly bought a kilogram or more of methamphetamine from a supplier in 

the Dallas area and that she took the drugs to Oklahoma for further 

distribution. Her supplier often facilitated her distribution activity by 

delivering the methamphetamine to her in or near Oklahoma. Pollet’s 

frequent purchase of distributable quantities of methamphetamine established 

more than a mere buyer-seller relationship. See Maseratti, 1 F.3d at 338 

(reasoning that a defendant participated in a conspiracy by being a repeat 

customer and buying large quantities of drugs); United States v. Mitchell, 777 

F.2d 248, 261 (5th Cir. 1985) (reasoning that a defendant’s “continuing 

relationship with the other defendants and the sizes of the caches involved 

establishes his role in the conspiracy to import and distribute marijuana.”); see 

also United States v. Akins, 746 F.3d 590, 605 (5th Cir.) (regular purchases in 

distributable quantities showed a conspiracy), cert. denied 135 S. Ct. 189 

(2014), and cert. denied, 2014 WL 4928160 (Nov. 3, 2014) (No. 14-6489), and 

cert. denied, 2014 WL 2891571 (Dec. 1, 2014) (No. 13-10699), and cert. denied,

2014 WL 2919626 (Dec. 1, 2014) (No. 13-10760). Nothing suggests that Pollet 

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was merely an acquirer or street-level user. See Delgado, 672 F.3d at 333. 

Pollet shows no clear or obvious error in the district court’s finding of a factual 

basis for her conspiracy plea.

In addition, Pollet contends that the district court plainly erred by 

finding her responsible for eleven kilograms of methamphetamine. The 

district court was entitled to rely on the facts recited in the PSR because they 

had an adequate evidentiary basis and Pollet offered nothing to rebut them. 

See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The PSR 

recounted that Pollet’s supplier regularly sold her at least one kilogram at a 

time over a period of almost six months, and police in Oklahoma reported that 

Pollet bought at least eleven kilograms from that supplier.

Pollet fails to show that the district court committed error, plain or 

otherwise, in accepting her plea and imposing her sentence. The judgment is 

AFFIRMED.

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