United States v. Chan , 236 F. App'x 39 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2007
Charles R. Fulbruge III
Clerk
No. 06-50839
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC CHAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-186-1
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Eric Chan appeals the sentence imposed following his guilty-
plea conviction of conspiracy to distribute at least 50 grams of
methamphetamine. Chan argues that the district court clearly
erred by imposing a two-level increase under U.S.S.G. § 3B1.1(c)
for his having played an aggravated role in the offense and that
the district court erred in finding that he distributed at least
1.5 kilograms of ice methamphetamine.
Chan contends that he and co-conspirator, Joseph Cantone,
were partners, as evidenced by the fact that Cantone took over
*
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this opinion should not be published and is not precedent except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.
No. 06-50839
-2-
operation of the business when Chan was incapacitated for several
weeks due to a medical condition. Chan did not offer any
evidence to support his contention that they split the proceeds
from their drug activities. Cantone was identified by Chan and
other co-conspirators as a runner for Chan. Given Chan’s
identification as a source of the drugs and his admissions that
he had the contacts necessary to obtain the drugs and that he and
Cantone played different roles in the conspiracy, the district
court did not clearly err in applying the two-level enhancement
under U.S.S.G. § 3B1.1(c). See United States v. Gonzales,
436 F.3d 560, 584 (5th Cir. 2006), cert. denied, 126 S. Ct. 2363(2006); United States v. Vaquero, 997 F.2d 78, 84 (5th Cir.
1993).
Chan’s also contends that only the drugs found at the time
of his arrest that were specifically tested for purity may be
used to calculate the quantity of ice methamphetamine for which
he is responsible is without merit. Over one kilogram of ice
methamphetamine was found at Chan’s residence at the time of his
arrest. One of the co-conspirators, James Neely, Sr., stated
that he had purchased one to two pounds a week of ice
methamphetamine from Chan during the course of the conspiracy.
Additionally, Chan testified at sentencing that he dealt in a
high quality methamphetamine, particularly during the last two
months of the conspiracy when he was using a new source for the
No. 06-50839
-3-
drugs. Neely stated that during those two months he purchased
approximately nine to twelve pounds of methamphetamine from Chan.
The district court did not clearly err in determining that
Chan was responsible for at least 1.5 kilograms of ice
methamphetamine under U.S.S.G. § 2D1.1. See United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
AFFIRMED.