United States v. Cynthia Pollet , 588 F. App'x 340 ( 2014 )

Case: 14-10152 Document: 00512875119 Page: 1 Date Filed: 12/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10152
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 18, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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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