United States v. Thomas ( 2022 )


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  • Case: 21-50663       Document: 00516315696           Page: 1      Date Filed: 05/11/2022
    United States Court of Appeals
    for the Fifth Circuit                                   United States Court of Appeals
    Fifth Circuit
    FILED
    May 11, 2022
    No. 21-50663                             Lyle W. Cayce
    Summary Calendar                                Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Travis Thomas, Jr.,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Western District of Texas
    No. 7:21-CR-18-1
    Before Smith, Stewart, and Graves, Circuit Judges.
    Per Curiam:*
    Travis Thomas, Jr., appeals his conviction and sentence for conspir-
    acy to possess with intent to distribute 50 grams or more of methampheta-
    mine (“meth”), possession with intent to distribute 50 grams or more of
    meth, possession with intent to distribute fentanyl, possession of a firearm in
    *
    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    opinion should not be published and is not precedent except under the limited circum-
    stances set forth in 5th Circuit Rule 47.5.4.
    Case: 21-50663      Document: 00516315696           Page: 2    Date Filed: 05/11/2022
    No. 21-50663
    furtherance of a drug-trafficking crime, and possession of a firearm as a felon.
    Thomas challenges an amendment to the indictment, the drug quantity
    calculation, and an obstruction-of-justice enhancement, and he avers that
    trial counsel provided ineffective assistance by failing to object to the presen-
    tence report (“PSR”).
    The Fifth Amendment provides the defendant the right to be tried
    solely on the grand jury’s allegations. Stirone v. United States, 
    361 U.S. 212
    ,
    215–18 (1960). Substantive amendments to the indictment must be resubmit-
    ted to the grand jury. United States v. Huff, 
    512 F.2d 66
    , 69 (5th Cir. 1975).
    In this case, alleging unlawful possession of “fentyl” and amending
    the indictment to allege “fentanyl” was an amendment of form rather than
    substance. See United States v. Young Bros., Inc., 
    728 F.2d 682
    , 693 (5th Cir.
    1984). Although there is a pharmaceutical drug called Fentyl, the record
    shows that this was a misnomer, as there is no evidence related to Fentyl or
    to an injectable form of fentanyl. Thomas was arrested while in possession
    of pills, and he received discovery alerting him that the pills contained fen-
    tanyl. Thomas also gave a statement that he had traded fentanyl pills, among
    other things, for the stolen car he was driving. He never claimed that he had
    prepared to meet an indictment charging him with possessing the injectable
    liquid form of fentanyl made in Bangladesh under the brand name Fentyl.
    As for the drug-quantity finding, Thomas’s statements in his police
    interview, which occurred after he was advised of his Miranda rights, are suf-
    ficiently reliable evidence of the quantity for those transactions. See United
    States v. Barfield, 
    941 F.3d 757
    , 763–64 (5th Cir. 2019). Although the lab
    report with the purity findings was excluded at trial as hearsay, the drug-
    quantity calculation may be based on reliable evidence without regard to its
    admissibility under the rules of evidence. See U.S.S.G. § 6A1.3, p.s.; United
    States v. Zuniga, 
    720 F.3d 587
    , 590 (5th Cir. 2013); see United States v. Dinh,
    2
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    No. 21-50663
    
    920 F.3d 307
    , 313 (5th Cir. 2019).
    It was appropriate for the district court to extrapolate the purity level,
    given Thomas’s admission that a man named Alex was his sole source of
    supply for the drugs he delivered and mailed to Franco. See United States v.
    Rodriguez, 
    666 F.3d 944
    , 947 (5th Cir. 2012). Thus, Thomas has not shown
    that the district court’s reliance on the PSR’s calculation of purity level, and
    its resulting determination of the amount of actual meth attributed to
    Thomas, was error, plain or otherwise. See United States v. Betancourt,
    
    422 F.3d 240
    , 247 (5th Cir. 2005).
    Additionally, Thomas fails to show plain error in the imposition of a
    sentence enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. His
    testimony at his codefendant’s trial that the codefendant had no knowledge
    of the drugs was contradicted by his codefendant’s statements to police.
    Thomas’s testimony was relevant to the material fact of whether his codefen-
    dant had knowledge of the drugs and supports a finding that Thomas com-
    mitted perjury by attempting falsely to exculpate his codefendant. See United
    States v. Flanagan, 484 F. App’x 973, 974 (5th Cir. 2012); see § 3C1.1, com-
    ment. (n.4(B)).
    In his final issue on appeal, Thomas complains that he received inef-
    fective assistance because his trial attorney failed to object to the drug-
    quantity calculation and the sentence enhancement in the PSR. Because
    Thomas’s post-Miranda statements constitute sufficiently reliable evidence
    of the quantity, and the source of supply supports the district court’s reliance
    on the PSR’s calculation of purity, counsel was not deficient in failing to
    object to the amount of actual meth attributed to Thomas. See United States
    v. Kimler, 
    167 F.3d 889
    , 893 (5th Cir. 1999) (noting that counsel does not ren-
    der ineffective assistance by failing to make meritless objections). Likewise,
    because Thomas’s attempt to exculpate his codefendant supports the en-
    3
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    hancement for obstruction of justice, counsel was not deficient in failing to
    object to the enhancement. See 
    id.
     Thomas has not shown that counsel was
    deficient in failing to object to the PSR or that he was prejudiced by such a
    failure. See Strickland v. Washington, 
    466 U.S. 668
    , 697 (1984).
    AFFIRMED.
    4