United States Court of Appeals

for the Fifth Circuit

No. 19-60233

United States of America, 

Plaintiff—Appellee,

versus

Frederick Arayatanon, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:18-CR-52-1

Before Dennis, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Frederick Arayatanon was convicted by a jury of conspiracy to possess 

with intent to distribute 500 grams or more of methamphetamine under 21 

U.S.C. § 846 and sentenced as a career offender to life in prison. Arayatanon 

appeals his conviction and sentence. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

November 13, 2020

Lyle W. Cayce

Clerk

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I. 

Arayatanon was charged with a single-count indictment for conspiracy 

to possess with intent to distribute 500 grams or more of methamphetamine

in violation of 21 U.S.C. § 846.1

 

At trial, the government presented evidence that, beginning in the 

summer of 2017, Arayatanon entered into an agreement to sell drugs with 

two coconspirators, Tuyen Ngoc Le and Demetrius Darnell Mason.2 

Arayatanon shipped packages of drugs from California to Le’s address in 

Biloxi, Mississippi. The packages originally contained marijuana, but later 

also included methamphetamine. Arayatanon would send the packages 

overnight to Mississippi through FedEx to Le, who provided the packages to 

Mason. Mason would pay Le, and Le in turn deposited cash in Arayatanon’s 

Wells Fargo bank account. The deposits were made at various Wells Fargo 

branches in Mississippi, which Arayatanon could then access through Wells 

Fargo branches and ATMs in California. Nine packages were sent in this 

fashion from July through November 2017. 

In November 2017, DEA agents received reports that large amounts 

of marijuana were being distributed from Le’s Biloxi address. While 

surveilling the house, DEA agents observed the delivery of the last of these

packages to Le’s address on November 29, 2017, and Le subsequently placed 

the package in Mason’s car. Following a car chase, officers apprehended 

Mason and recovered the package containing 1 pound of marijuana and 882 

grams (or nearly 2 pounds) of methamphetamine. After executing a search 

warrant, agents found $9,500 in cash in Le’s purse, and Le was subsequently 

arrested. Using records obtained from Le’s phone, officers identified 

1 The underlying offense, possession with intent to distribute 500 grams or more 

of methamphetamine, violates 21 U.S.C. § 841(a)(1), (b)(1)(A).

2 Both Le and Mason pleaded guilty with cooperation agreements prior to 

Arayatanon’s trial. 

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Arayatanon and subsequently arrested him while he was crossing the border 

from Mexico to the United States.

While Arayatanon and his coconspirators never met in person, they 

had communicated by phone, including through WhatsApp messages and 

FaceTime. Arayatanon used various other aliases, and was known to his 

Mississippi coconspirators primarily as “Khoi.”3

 All of these aliases were 

connected to Arayatanon using phone and bank account records, and 

testimony from Le, Mason, and the agents who conducted the investigation. 

The government also played at trial audio recordings of calls Arayatanon 

made while he was in custody. These calls included references to Arayatanon 

as “Khoi.” Another call included a conversation in which Arayatanon says 

he sent packages “once or twice.”

Arayatanon did not testify and did not present any evidence. At the 

close of the three-day trial, the jury returned a unanimous guilty verdict. 

Arayatanon was sentenced to life in prison. 

II. 

On appeal, Arayatanon argues that during his trial, the district court 

abused its discretion by excusing two case agents from sequestration under 

Federal Rule of Evidence 615, and by admitting jailhouse telephone calls that

he argues undermined his presumption of innocence before the jury. 

Arayatanon also asserts that the district court erred at sentencing in 

calculating his offense level based on an incorrect drug quantity, imposing a 

two-level enhancement because the drugs were imported, and applying the

career offender enhancement. Finding no error, we affirm.

3 He was identified in Le’s phone as “Khoi Cali.”

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A. 

First, Arayatanon asserts that the district court erred in exempting

both of the government’s case agents from sequestration pursuant to Federal 

Rule of Evidence 615. 

We review a district court’s compliance with Rule 615 for an abuse of 

discretion, and we will reverse only if Arayatanon demonstrates prejudice. 

United States v. Green, 324 F.3d 375, 380 (5th Cir. 2003). Rule 615 provides 

that at the request of a party, “the court must order witnesses excluded so 

that they cannot hear other witnesses’ testimony.” Fed. R. Evid. 615. 

However, “this rule does not authorize excluding . . . a person whose 

presence a party shows to be essential to presenting the party’s claim or 

defense.” Fed. R. Evid. 615(c). While district judges are afforded broad 

discretion in its application, they must remain mindful of the purpose behind 

the rule. “Its main purpose is to aid in detecting testimony that is tailored to 

that of other witnesses and is less than candid.” United States v. Wylie, 919 

F.2d 969, 976 (5th Cir. 1990).

At the beginning of trial, Arayatanon invoked Rule 615 and requested 

that one of the government’s two agents be sequestered because both agents 

were identified as possible witnesses. The government responded that 

because both agents had acted as the case agents at different times, each was

necessary in the presentation of its case. Based on the government’s 

representation, the district court overruled Arayatanon’s objection and 

permitted both agents to stay. At trial, only one of the case agents testified.

Arayatanon has made no showing to overcome the government’s 

representation that both agents were essential. To the extent Arayatanon 

asserts that he had the right to have one of the case agents sequestered, this 

argument is unavailing. Rule 615 does not limit the district court’s discretion 

to excuse only one case agent from sequestration. See United States v. 

Alvarado, 647 F.2d 537, 540 (5th Cir. 1981) (“[T]he decision as to how many 

will be excused from sequestration is just as discretionary with the trial judge 

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as who will be excused.”); see also United States v. Payan, 992 F.2d 1387, 1394 

(5th Cir. 1993) (finding no reversible error where district court permitted two 

case agents to both remain and testify). In any event, Arayatanon has not 

shown the resulting prejudice that is required to warrant reversal of his 

conviction.

B. 

Arayatanon next contends that the district court violated his due 

process rights by admitting the jailhouse telephone calls. He argues that 

because the calls indicated to the jury that he was incarcerated, they 

undermined his presumption of innocence. 

We review “a district court’s evidentiary rulings for abuse of 

discretion, subject to harmless error review.” United States v. Isiwele, 635 

F.3d 196, 199 (5th Cir. 2011). A district court “abuses its discretion when its 

ruling is based on an erroneous view of the law or a clearly erroneous 

assessment of the evidence.” United States v. Ebron, 683 F.3d 105, 133 (5th 

Cir. 2012) (internal quotation marks and citation omitted). 

Here, the government sought to play four telephone calls Arayatanon 

had with other people while he was incarcerated prior to trial. The 

government introduced these calls to show Arayatanon’s reluctance to be 

referred to by his nickname “Khoi,” as he was known to his Mississippi 

coconspirators and identified in Le’s phone. Three of the recordings refer to 

Arayatanon as “Khoi,” despite Arayatanon’s cautions to refer to him only as

“Fred.” In one of those calls, Arayatanon also refers to his inmate number. 

The fourth call does not reference “Khoi” but includes a conversation where

Arayatanon appears to admit sending packages “once or twice.”4 

4 The government emphasized all four of the jail calls in its closing statement, 

including even replaying this last call. Arayatanon neither objected to this at trial nor on 

appeal. Rather, he argues only that the admission of the calls was prejudicial for the sole 

reason that the references to being in custody “undermined his presumption of 

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During a bench conference, the government offered to authenticate 

the jail calls outside the jury’s presence to prevent the jury from learning 

Arayatanon was incarcerated. However, the district court declined to do so 

because the “credibility of those tape recordings are a matter that the jury 

will have to consider,” including how the recordings were made and that they 

were not edited or tampered with. Arayatanon declined to stipulate to the 

recordings’ authenticity.

The district court permitted the authentication to proceed because 

“the fact that [Arayatanon] may have been in custody at the time that he 

made certain phone calls” was not “a matter that should be kept a secret,” 

and was not “in and of itself . . . prejudicial.” The district court emphasized

the precautions it took to ensure that Arayatanon was not presented in chains 

or a prison jumpsuit, and to conceal other security measures so that the jury 

would “not get the impression that any individual on trial is some type of

dangerous criminal.” Notably, too, the district court offered to provide a 

cautionary instruction “about the mere fact [Arayatanon] may have been at 

one time or maybe even now [is] in custody,” which Arayatanon refused. 

The government subsequently elicited testimony from a correctional officer

who testified how the inmates’ calls were recorded and identified, including

Arayatanon’s calls. The calls were then played for the jury. 

On appeal, Arayatanon argues that the district court’s admission of 

the jail calls undermined his presumption of innocence. His sole argument is 

that their implication to the jury that he was in custody was akin to as if he 

“had been shackled during trial.” Not so.

“The presumption of innocence, although not articulated in the 

Constitution, is a basic component of a fair trial under our system of criminal 

justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). For this reason, 

innocence.” Neither party addresses the government’s closing statement in their briefing 

before us. 

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“visible” restraints such as shackles are inherently prejudicial and are 

prohibited absent a justifiable state interest such as courtroom safety. Deck 

v. Missouri, 544 U.S. 622, 629 (2005); United States v. Hope, 102 F.3d 114, 

117–18 (5th Cir. 1996). Similarly, the Supreme Court prohibits requiring a 

defendant to appear before a jury in prison clothing because “the constant 

reminder of the accused’s condition implicit in such distinctive, identifiable 

attire may affect a juror’s judgment” and is “likely to be a continuing 

influence throughout the trial.” Williams, 425 U.S. at 504–05. 

The admission of Arayatanon’s jail calls did not pose the same 

constant and visible risk of prejudice as shackling, prison garb or other 

external signs of a defendant’s incarceration or perceived threat to the 

community at large.5

 While Arayatanon may have been somewhat prejudiced 

by the fact that the jury learned the calls were recorded while he was in jail, 

we conclude that the reference to Arayatanon’s incarceration, as revealed in 

the presentation of the jail calls, was not unfairly prejudicial. We do not hold 

that admission of recorded jail telephone calls can never be so unfairly 

prejudicial that a due process violation might result. But this is not such a 

case.

The district court “may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. 

R. Evid. 403. “A district court’s ruling regarding Rule 403 is reviewed 

‘with an especially high level of deference to the district court, with reversal 

called for only rarely and only when there has been a clear abuse of 

discretion.’” United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015) 

(quoting United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008)). 

5 See, e.g., United States v. Nicholson, 846 F.2d 277, 278–79 (5th Cir. 1988) 

(plainclothes deputies seated next to a defendant with “a history of violent and unruly 

behavior” was not unduly prejudicial); Holbrook v. Flynn, 475 U.S. 560, 569–72 (1986) 

(uniformed officers seated behind defendant is not inherently prejudicial to undermine a 

defendant’s right to a fair trial).

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Arayatanon did not argue at trial, nor on appeal here, that these calls were 

not relevant or lacked probative value.

6 The district court did not abuse its 

discretion because the fact that Arayatanon had been in custody before trial 

was not unfairly prejudicial under these circumstances. See also United States 

v. Johnson, 624 F.3d 815, 821–22 (7th Cir. 2010) (distinguishing defendant’s 

argument that the admission of jail calls was akin to a defendant wearing 

prison attire at trial under Estelle v. Williams, 425 U.S. 501 (1976), and finding 

no abuse of discretion in admitting the tapes under Rule 403).

Moreover, Arayatanon declined a limiting instruction to mitigate any 

lingering prejudice. Even in situations where the “risk of prejudice is high,” 

the Supreme Court has held that “less drastic measures, such as limiting 

instructions, often will suffice to cure any risk of prejudice.” Zafiro v. United 

States, 506 U.S. 534, 539 (1993); accord United States v. Williams, 620 F.3d 

483, 492 (5th Cir. 2010). Consequently, the district court did not err in 

admitting the jail calls. 

C. 

Arayatanon asserts that the district court erred at sentencing in 

determining the quantity of methamphetamine attributable to him for the 

purpose of calculating his base offense level under U.S.S.G. § 2D1.1(c). The 

PSR held Arayatanon responsible for 882 grams (nearly 2 pounds) of 

methamphetamine that were seized on November 29, 2017, plus 9 pounds of 

methamphetamine based on the FedEx shipments Arayatanon sent to 

Mississippi from September through November 2017. Arayatanon maintains 

that the government’s evidence at trial contained conflicting evidence as to 

6 At trial, Arayatanon objected to the admission of the recordings for lack of 

foundation that it was “an exact copy of . . . the original.” He further objected to the 

admission of the transcripts as “cumulative” and creating an “undue influence . . . on that 

particular piece of proof” for the jury. The district court overruled both objections, but 

gave a limiting instruction as to the purpose of the transcripts. Arayatanon does not 

challenge these rulings on appeal. 

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when Arayatanon sent the first package, and which packages contained 

methamphetamine instead of just marijuana. Consequently, he argues that 

the evidence established that he was responsible only for 9 pounds of 

methamphetamine instead of 11.

We review the district court’s determination of drug quantity for clear 

error and will affirm the finding as long as it is “plausible in light of the record 

as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) 

(internal quotation marks and citation omitted). In determining drug 

quantities for sentencing purposes, the district court may rely on any relevant 

evidence which “‘has sufficient indicia of reliability to support its probable 

accuracy.’” United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015) 

(quoting U.S.S.G. § 6A1.3(a)). A defendant who takes issue with facts 

presented in the PSR has the burden of demonstrating “that the information 

is materially untrue, inaccurate or unreliable.” Id. (internal quotation marks 

and citation omitted). A defendant’s mere objections at sentencing do not 

constitute competent rebuttal evidence. United States v. Parker, 133 F.3d 

322, 329 (5th Cir. 1998).

Here, the drug-quantity determination in the PSR is sufficiently 

reliable even if based on a coconspirator’s “imprecise” testimony, especially 

absent any competent rebuttal evidence from Arayatanon to refute the 11 

pounds of methamphetamine attributed to him in the PSR. See United States 

v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). Moreover, contrary to 

Arayatanon’s bare assertions on appeal, both the PSR and evidence 

presented at trial support this drug-quantity determination. In light of the 

record as a whole, the district court’s factual finding as to the quantity of 

methamphetamine was more than plausible. See id.; Betancourt, 422 F.3d at 

246. Thus, the district court did not err in relying on the PSR, as 

corroborated by the court’s recollection of the evidence presented at trial, 

and adopting the PSR’s drug-quantity determination. 

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D. 

Arayatanon next challenges the application of the two-level 

enhancement under U.S.S.G. § 2D1.1(b)(5), contending that the evidence 

was insufficient to establish that the methamphetamine was imported. We 

review the district court’s factual determination that § 2D1.1(b)(5) applies 

for clear error. United States v. Serfass, 684 F.3d 548, 553–54 (5th Cir. 2012). 

Section 2D1.1(b)(5) provides for a two-level enhancement if the 

offense involved the importation of methamphetamine. U.S.S.G. 

§ 2D1.1(b)(5). “The government must prove the facts underlying a 

sentencing enhancement by a preponderance of the evidence.” Serfass, 684 

F.3d at 553. The enhancement “applies when ‘the offense involved the 

importation of . . . methamphetamine,’ even if the defendant did not know 

that the methamphetamine was imported.” Id. at 554 (alteration in original)

(quoting U.S.S.G. § 2D1.1(b)(5)). 

In support of this enhancement, the PSR stated that the 

methamphetamine seized on November 29, 2017, was 100% pure. DEA 

agents advised the probation officer that the methamphetamine “was likely 

imported into the United States” because “there are no known labs in the 

United States that can manufacture methamphetamine of this purity level.” 

At sentencing, the district court also noted that “[Arayatanon] or individuals 

that were associated with [him] [made] trips to Mexico.” 

On appeal, Arayatanon argues that the district court erred because

“the PSR lacks any discussion of importation aside from [his] travel to 

Mexico and the purity level.” However, on this record, the district court 

could plausibly infer, by a preponderance of evidence, that the 

methamphetamine was imported. See Serfass, 684 F.3d at 550, 553. 

Arayatanon’s principal argument on appeal that “[a] Mexican cartel could 

have manufactured the methamphetamine within the United States . . . with 

no importation required” is speculation that does not rebut the PSR. See, 

e.g., United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because 

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no testimony or other evidence was submitted to rebut the information in the 

PSR, the district court was free to adopt the PSR’s findings.”). Thus, the 

district court did not clearly err in applying the § 2D1.1(b)(5) enhancement.

E.

Finally, Arayatanon contends that the district court erred in 

sentencing him as a career offender under U.S.S.G. § 4B1.1. Specifically, he 

argues that the district court erred in determining that there was reliable 

evidence to establish the existence of the requisite prior convictions. 

We review the district court’s application of the Sentencing 

Guidelines de novo and review its factual findings for clear error. GomezAlvarez, 781 F.3d at 791. Clear error review applies where, as here, the 

defendant challenges “a district court’s conclusion that evidence submitted 

to prove the fact of a prior conviction bears ‘sufficient indicia of reliability.’” 

United States v. Ortega-Calderon, 814 F.3d 757, 759 (5th Cir. 2016) (quoting 

U.S.S.G. § 6A1.3(a)); id. at 760 (distinguishing between the “legal inquiry” 

of whether a specific type of conviction qualifies for purposes of applying a 

sentencing enhancement and “the factual question of whether a defendant 

has been convicted—period”). “There is no clear error if the sentencing 

court’s finding is plausible in light of the record as a whole.” United States v. 

Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court will reverse 

on clear error review only if it is left with a “definite and firm conviction that 

a mistake has been committed” based on the entire evidence. United States 

v. Rose, 449 F.3d 627, 633 (5th Cir. 2006) (internal quotation marks and 

citation omitted).

The career offender enhancement appliesif, inter alia, “the defendant 

has at least two prior felony convictions of . . . a controlled substance 

offense.” U.S.S.G. § 4B1.1(a). The PSR determined that Arayatanon 

qualified as a career offender under § 4B1.1 based on two prior controlled 

substance convictions in California, first in 2009 and then again in 2013, both 

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for possession of a controlled substance (methamphetamine) with intent to 

sell, in violation of California Health & Safety Code § 11378.7

 

The PSR was initially prepared based on the criminal complaints 

received from the Clerk of Court in California and conviction information 

obtained from the Clerk’s official website. At Arayatanon’s request, 

sentencing was continued to permit defense counsel additional time to 

investigate additional documentation—including judgments—to rebut the 

PSR. 

The probation office subsequently supplemented the PSR. While no 

judgment or additional documents directly from the 2009 conviction were 

produced, the additional documents from the 2013 conviction repeatedly 

referenced the 2009 conviction, including an amended charging document, a 

signed admission from Arayatanon that he had been convicted in 2009 of 

possession of a controlled substance with intent to sell, and a signed guilty 

plea stating both that Arayatanon was pleading guilty in 2013 to possession of 

a controlled substance with intent to sell and that he had been previously 

convicted in 2009 of the same charge. An abstract of judgment for 

Arayatanon’s 2013 conviction was also included. At sentencing for the 

instant offense, Arayatanon presented no additional evidence, and the 

district court adopted the PSR’s conclusions as to the prior convictions and

applied the career offender enhancement.

The district court did not clearly err in concluding that the prior 

California convictions occurred. To start, Arayatanon’s argument that the 

2013 abstract of judgment is unreliable based on United States v. GutierrezRamirez, 405 F.3d 352 (5th Cir. 2005) is misplaced. That case determined 

that it was error to exclusively rely on a California abstract of judgment to 

7 It is undisputed that a conviction under this statute qualifies as a predicate 

controlled substance offense. See United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017)

(per curiam).

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determine whether the defendant’s prior conviction qualified as a drug 

trafficking offense, not whether it was sufficiently reliable to establish that a 

conviction occurred. See Gutierrez-Ramirez, 405 F.3d at 358–59; see also 

United States v. Moreno-Florean, 542 F.3d 445, 449 n.1 (5th Cir. 2008) 

(“California abstracts of judgment have sufficient indicia of reliability to 

support their probable accuracy such that the documents can be used as 

evidence of a prior conviction.”).8

Moreover, contrary to Arayatanon’s assertion that the documents 

contain “inconsistencies” as to how Arayatanon was sentenced, they are 

internally consistent regarding the fact of the 2009 and 2013 convictions. 

While the documents are not judgments, they contain “a significant amount 

of detail” and “strongly corroborate one another,” including referencing the 

dates, case numbers, and charges for the prior 2009 and 2013 convictions. 

Ortega-Calderon, 814 F.3d at 762. Nor has Arayatanon offered evidence to 

rebut the reliability of the documents and his signed admissions, or denied 

that he was convicted. See id. (“We have previously refused to find evidence 

of a prior conviction to be unreliable when the defendant has not come 

forward with contrary proof, and we do so again here.”). Consequently, the 

district court did not commit clear error in relying on these documents to 

8 Gutierrez-Ramirez and Moreno-Florean involved sentencing enhancements under 

U.S.S.G. § 2L1.2, which increases the offense level for a conviction of unlawful reentry if 

the defendant was previously convicted of a “drug trafficking offense” or “crime of 

violence.” Gutierrez-Ramirez, 405 F.3d at 353–54; Moreno-Florean, 542 F.3d at 449. 

Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in 

substantially the same way, “cases discussing these definitions are cited interchangeably.” 

United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5th Cir. 2008) (per curiam); accord 

United States v. Mendez-Henriquez, 847 F.3d 214, 221 (5th Cir. 2017) (“[O]ur court’s 

interpretation of § 4B1.2 informs our interpretation of § 2L1.2, given the two Guidelines’ 

identical language and closely aligned purposes.”). The same applies here in considering 

whether the documents used to establish proof of a prior conviction contain “sufficient 

indicia of reliability to support its accuracy” to apply a sentencing enhancement. U.S.S.G. 

§ 6A1.3(a).

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determine Arayatanon was a career offender under § 4B1.1. See OrtegaCalderon, 814 F.3d at 762–63.

III. 

For the forgoing reasons, we AFFIRM Arayatanon’s conviction and 

sentence.

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