United States v. Eustice

• Decision Date: 18 March 2020
• Docket Number: No. 18-11519,18-11519
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Brandon Shane EUSTICE, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

952 F.3d 686

UNITED STATES of America, Plaintiff - Appellee

v.Brandon Shane EUSTICE, Defendant - Appellant

No. 18-11519

United States Court of Appeals, Fifth Circuit.

FILED March 18, 2020

Kristina Marie Williams, Brian W. McKay, Esq., Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Randall Harrison Nunn, Esq., Mineral Wells, TX, for Defendant-Appellant.

Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Defendant-appellant Brandon Shane Eustice ("Eustice") pleaded guilty, without a plea agreement, to one count of conspiracy to possess with intent to distribute an unspecified amount of methamphetamine ("meth") in violation of 21 U.S.C. §§ 846, 841(a) & (b)(1)(C). The district court sentenced him to 84 months of imprisonment and three years of supervised release, which was below the guidelines range of 100 to 125 months. Eustice asserts three sentencing errors on appeal: (1) the district court erred in calculating the quantity of drugs attributable to him, (2) the district court erred in applying a sentence enhancement for maintaining a drug premises, and (3) the district court erred in assigning two criminal history points for his state fraud conviction. We AFFIRM.

FACTS AND PROCEEDINGS

Eustice admitted that from about March 2017 through January 10, 2018, he knowingly and willfully conspired with others to distribute meth, and "[m]embers of the conspiracy used Facebook, text messages and phone calls in addition to face to face meetings to coordinate the sale or [sic] narcotics to each other and to other individuals known and unknown." According to the PSR, Eustice received meth from Lawrence Boone ("Boone") and Alicia Murfield ("Murfield"), which he then distributed to his own customer base in Wichita Falls, Texas, and the surrounding areas. The PSR held Eustice accountable for 127.57 grams of meth that he received from Boone and 283.5 grams of meth that he received from Murfield, for a total of 411.07 grams of meth.

On September 20, 2017, officers executed a search warrant at Eustice’s residence. According to the PSR, officers seized digital scales, meth pipes, an unknown quantity of meth, and "other drug paraphernalia consistent with drug trafficking." On December 14, 2017, officers served an outstanding state warrant for Eustice at his residence. According to the PSR, subsequent to arresting Eustice, officers observed a glass meth pipe, digital scales with suspected meth residue, and a plastic baggie containing suspected meth near the area where Eustice had been sitting. Based on these encounters, the PSR applied a two-level sentence enhancement for maintaining a premises for the purpose of distributing a controlled substance, pursuant to U.S.S.G. § 2D1.1(b)(12). After applying a three-level reduction for acceptance of responsibility, the PSR calculated Eustice’s total offense level as 27.

In calculating Eustice’s criminal history score, the PSR assigned two criminal history points for Eustice’s state fraud conviction. Eustice pleaded guilty to this offense on February 9, 2017 and was sentenced to three years deferred adjudication probation. On February 1, 2018, Eustice’s probation was revoked, he was adjudicated guilty, and he was sentenced to 255 days of imprisonment. Based in part on this conviction, the PSR assessed Eustice’s criminal history category as IV and the guideline imprisonment range as 100 months to 125 months.

Eustice filed objections to the PSR. Relevantly, he objected to the quantity of drugs attributed to him and application of the drug premises sentence enhancement. The probation officer filed an addendum to the PSR, rejecting all of Eustice’s relevant objections. Eustice then reasserted his objections to the PSR as objections to the PSR addendum and raised a new objection to the assignment of two criminal history points for his state fraud conviction. He argued that only one point should have been assessed, which would have resulted in a criminal history category of III. With respect to the drug quantity calculation, Eustice affirmatively stated that he did not dispute the amount of meth attributed to him through Boone, a concession that he acknowledged and "st[ood] by" at oral argument before this panel. In response, to support the drugs attributed to Eustice through Murfield, the government provided text messages between Eustice and Murfield discussing numerous drug transactions, many of which took place at Eustice’s residence.

At the sentencing hearing on November 13, 2018, Eustice re-urged his objections to the PSR and PSR addendum. The district court overruled the objections "for the reasons stated in the Government’s Response and the Addendum." The district court adopted the probation officer’s fact findings and conclusions as to the appropriate guidelines calculations but varied downward "based upon the Defendant’s Sentencing Memorandum related to his childhood upbringing [and] his addiction" and sentenced Eustice to 84 months of imprisonment.

DISCUSSION

I. Drug Quantity Calculation

First, Eustice challenges the district court’s calculation of the amount of drugs attributable to him on four grounds: (1) the calculation was based on unreliable and insufficient evidence, (2) the district court improperly applied the multiplier method, (3) the district court included drugs that Eustice personally consumed in its calculation, and (4) the district court failed to discount the estimate to account for uncertainty in the calculation. The government agrees that Eustice preserved these issues. Therefore, we review the district court’s legal interpretations of the guidelines de novo and its findings of fact, including the calculation of drugs attributable to Eustice, for clear error.

United States v. Clark , 389 F.3d 141, 142 (5th Cir. 2004). The calculation will be upheld so long as it is "plausible in light of the record as a whole." United States v. Betancourt , 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v. Alford , 142 F.3d 825, 831 (5th Cir. 1998) ).

We disagree that the district court’s calculation was based on unreliable and insufficient evidence. In arriving at a sentence, the district court may consider any information that has sufficient indicia of reliability to support its probable accuracy, including estimates of drug quantities. United States v. Valdez , 453 F.3d 252, 267 (5th Cir. 2006). Here, the district court considered the information in the PSR, the PSR addendum, Eustice’s objections, and the government’s responses to Eustice’s objections, including the text messages between Eustice and Murfield. Eustice does not challenge the 127.57 grams of meth that were attributed to him through Boone, which he expressly agreed to in his objections to the PSR addendum. The 283.5 grams of meth that were attributed to Eustice through Murfield were adequately supported by the text messages that the government provided in response to Eustice’s objections to the PSR addendum. Therefore, the total calculation of 411.07 grams of meth attributable to Eustice is "plausible in light of the record read as a whole." Betancourt , 422 F.3d at 246 (quoting Alford , 142 F.3d at 831 ).

We also disagree that the district court improperly applied the multiplier method. Concerns about the "multiplier method" arise when the district court "extrapolate[s] from a known event to predict what happened in other unknown events." United States v. Kearby , 943 F.3d 969, 975 (5th Cir. 2019). Nowhere in the PSR is there any mention of extrapolation. Rather, the amounts attributed to Eustice were based on evidence regarding drug quantities involved in a number of transactions between Eustice and Boone and Murfield.

Eustice’s argument that the district court erred by considering meth he purchased for personal use is similarly unavailing. In Clark , this court joined "every other circuit that ha[d] considered this issue" and held that a district court may properly consider drugs possessed by a defendant for his personal consumption when calculating a sentence for conspiracy to possess with intent to distribute. 389 F.3d at 142.

Finally, we reject Eustice’s argument that the district court erred by refusing to discount the estimate to account for uncertainty. The drug quantity calculation was adequately supported, and Eustice cites no precedent demonstrating that reduction is required in these circumstances.

Therefore, the district court did not clearly err in calculating the quantity of meth attributable to Eustice.

II. Drug Premises Sentence Enhancement

Next, Eustice challenges the district court’s application of a two-level sentence enhancement for maintaining a drug premises pursuant to U.S.S.G. § 2D1.1(b)(12). He argues that this was (1) procedural error because the district court did not consider commentary note 17 to § 2D1.1(b)(12), and (2) substantive error because only bare assertions supported the enhancement. The government agrees that Eustice preserved these arguments. Therefore, we review the district court’s interpretation of the guidelines de novo and its findings of fact for clear error. United States v. Haines , 803 F.3d 713, 743 (5th Cir. 2015).

Guideline § 2D1.1(b)(12) instructs the district court to apply a two-level sentence enhancement "[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance." The enhancement "applies to a defendant who knowingly maintains a premises ... for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution." § 2D1.1(b)(12) cmt. n.17. Although manufacturing or distributing need not be the sole purpose for which the premises is maintained, it must "be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral...