United States v. Pena ( 2021 )

Case: 20-11072 Document: 00515946250 Page: 1 Date Filed: 07/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-11072 July 21, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Aaron Christopher Pena,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-364-14
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Defendant-Appellant Aaron Christopher Pena pleaded guilty to
conspiracy to possess with intent to distribute methamphetamine. He
contends on appeal that, because there was no evidence that he knew the
methamphetamine had been imported, the district court erred by imposing
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-11072 Document: 00515946250 Page: 2 Date Filed: 07/21/2021
No. 20-11072
an imported methamphetamine enhancement. See U.S.S.G. § 2D1.1(b)(5).
Pena concedes that this argument is foreclosed by circuit precedent, and that
he raises it only to preserve it for further review. See United States v. Serfass,
684 F.3d 548, 552-53 (5th Cir. 2012); United States v. Foulks, 747 F.3d 914,
915 (5th Cir. 2014).
Pena also challenges the amount of methamphetamine attributed to
him for sentencing purposes. He admits, however, that in addition to the
methamphetamine seized when he was arrested, he had purchased
approximately two pounds of that drug from his supplier over the previous
several months.
To determine the amount of methamphetamine actually involved in
those additional purchases, the district court extrapolated an average purity
level from other drug seizures that allegedly originated from a common
higher-level supplier. Pena contends that the facts set out in the presentence
report do not show that the other methamphetamine he purchased originated
from that same higher-level supplier or that those tested drug samples had a
purity level similar to the methamphetamine that he purchased.
“The district court’s calculation of the quantity of drugs involved in
an offense is a factual determination” that is “entitled to considerable
deference and will be reversed only if [it is] clearly erroneous.” United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal quotation marks
and citations omitted). “A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.” Id. Furthermore, a district
court may adopt a PSR’s drug quantity finding “without further inquiry if
those facts have an adequate evidentiary basis with sufficient indicia of
reliability and the defendant does not present rebuttal evidence.” United
States v. Dinh, 920 F.3d 307, 313 (5th Cir. 2019) (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012)) (emphasis in original).
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Case: 20-11072 Document: 00515946250 Page: 3 Date Filed: 07/21/2021
No. 20-11072
Pena has not shown that (1) the district court’s reliance on the PSR’s
calculation of the purity level for the unseized methamphetamine, or (2) its
resulting determination of the amount of methamphetamine (actual)
attributed to him, were clearly erroneous. The PSR’s calculation was based
on the charging document, factual resume, and investigative material
compiled by the Federal Bureau of Investigation and the Drug Enforcement
Agency. Those investigative materials were “verified and supplemented by”
a DEA task force officer. See United States v. King, 773 F.3d 48, 53 (5th Cir.
2014) (ruling that a PSR contained sufficient indicia of reliability when the
probation officer “cited several investigative methods used in preparing” it).
Neither has Pena presented any rebuttal evidence indicating that the facts
contained in the PSR or the conclusions drawn therefrom are false. Based on
the investigative reports in the record, we conclude that the district court did
not clearly err in extrapolating a purity level from those other seizures and
applying it to the methamphetamine that Pena admitted purchasing.
AFFIRMED.
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