IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11421

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TERRY RYAN NICHOLS, also known as “Buster”,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-114-3

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Terry Ryan Nichols appeals the 240-month guideline sentence imposed 

following his guilty plea conviction for conspiracy to possess with intent to 

distribute methamphetamine. He argues that the district court erred by 

(1) miscalculating his drug quantity for the purpose of his guidelines offense 

level, (2) denying him a two-level minor-participant reduction pursuant to 

 

* 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

August 9, 2017

Lyle W. Cayce

Clerk

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U.S.S.G. § 3B1.2(b), and (3) imposing a substantively unreasonable sentence. 

We affirm.

First, Nichols argues that the district court erred by holding him 

accountable for a kilogram of methamphetamine transported by his coconspirators, arguing that he did not personally transport the drugs and was 

unaware of that particular drug transaction. Even assuming that the district 

court incorrectly calculated Nichols’s drug quantity, however, the Government

has demonstrated that any error was harmless and had no effect on the 

sentence Nichols received. Excluding the disputed kilogram of 

methamphetamine from Nichols’s offense level calculation would not have 

changed his guidelines range, which would still have been the 240-month 

statutory maximum pursuant to U.S.S.G. § 5G1.1(a). See United States v. 

Garcia-Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013). Moreover, at sentencing,

the district court convincingly explained that it would have imposed the same

sentence even if it had erred in calculating the correct guidelines range. “The 

district judge was firm, plain, and clear in expressing the court’s reasoning, 

and we take him at his word.” United States v. Castro-Alfonso, 841 F.3d 292, 

298–99 (5th Cir. 2016). Accordingly, we are persuaded that any error was 

harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010); 

cf. United States v. Ramos, 739 F.3d 250, 253–54 (5th Cir. 2014).

Next, we review for clear error the denial of Nichols’s request for a twolevel minor-participant reduction pursuant to U.S.S.G. § 3B1.2(b). United 

States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). Nichols did not satisfy his 

burden to show by a preponderance of the evidence either “(1) the culpability 

of the average participant in the criminal activity” or (2) that he “was 

substantially less culpable than that participant.” Id. at 613. And the record 

contained evidence that Nichols frequently received and distributed 

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methamphetamine, understood the scope of the criminal activity, planned the 

criminal activity by locating sources of supply as well as customers, made the 

decisions in his distribution activities, and benefitted from the criminal 

activity. The district court’s finding that Nichols was not entitled to a minorparticipant reduction was not clearly erroneous. See id.

Finally, we review Nichols’s presumptively reasonable guideline 

sentence for abuse of discretion. United States v. Jenkins, 712 F.3d 209, 214 

(5th Cir. 2013). Nichols has not demonstrated that his guideline sentence 

created an unwarranted sentencing disparity with respect to any similarly 

situated defendants. See 18 U.S.C. § 3553(a)(6); United States v. Guillermo 

Balleza, 613 F.3d 432, 435 (5th Cir. 2010). His remaining arguments amount 

to a mere disagreement with the district court’s balance of the pertinent 

sentencing factors, which fails to rebut the presumption of reasonableness or 

to establish an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 

(2007); Jenkins, 712 F.3d at 214.

AFFIRMED.

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