United States v. Pickens , 285 F. App'x 184 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 28, 2008
No. 07-51080
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHRISTOPHER LANCE PICKENS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-47-1
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Christopher Lance Pickens appeals his sentence following his guilty plea
conviction for possession with intent to distribute crack cocaine in violation of
21 U.S.C. § 841(a)(1) & (b)(1)(C). Pickens argues that the district court’s
determination of the amount of crack cocaine attributable to him was clearly
erroneous because it was not based on information having a sufficient indicia of
reliability and because the district court failed to articulate its reasons for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51080
accepting the sentencing-hearing testimony of a witness, over the witness’s prior
statement to police.
A district court’s calculation of the quantity of drugs involved in an offense
is a factual finding that is entitled to considerable deference, see United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005), and will be reversed only if
clearly erroneous. Id.; see also United States v. Villegas, 404 F.3d 355, 359 (5th
Cir. 2005). A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole. Betancourt, 422 F.3d at 246. When calculating the total
drug amounts attributable to a defendant through his course of conduct, direct
evidence is unnecessary. Id. Drug estimates may be calculated based on
extrapolating from “any information that has sufficient indicia of reliability to
support its probable accuracy . . . even hearsay.” United States v. Valdez, 453
F.3d 252, 267 (5th Cir. 2006)(internal quotation marks and citation omitted).
According to the Presentence Investigation Report (PSR), a witness told
investigators that he sold one to two ounces of crack cocaine to Pickens every day
for about two and a half to three months; at sentencing, he testified that he sold
Pickens about one and half to two ounces of crack cocaine every other day for
about three months. The district court acknowledged the inconsistencies and
held Pickens responsible for the lesser amount of drugs based on the witness’s
testimony.
A witness’s inconsistent statements do not lack a sufficient indicia of
reliability per se, although inconsistent statements do raise a credibility
question. See United States v. Ramirez, 963 F.2d 693, 708 (5th Cir. 1992).
However, it is within the province of the district court to determine the
credibility of witnesses. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir.
2000).
Because the evidence relied on by the district court had a sufficient indicia
of reliability, and because the district court’s factual finding regarding the
amount of drugs attributable to Pickens is plausible in light of the record as a
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No. 07-51080
whole, see Betancourt, 422 F.3d at 246, the judgment of the district court is
AFFIRMED.
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