United States v. Kearby

• Decision Date: 25 November 2019
• Docket Number: No. 18-10874,18-10874
• Citation: 943 F.3d 969
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Ronnie KEARBY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

943 F.3d 969

UNITED STATES of America, Plaintiff–Appellee

v.Ronnie KEARBY, Defendant–Appellant.

No. 18-10874

United States Court of Appeals, Fifth Circuit.

FILED November 25, 2019

Amber Michelle Grand, Attorney, Gail A. Hayworth, 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.

JERRY E. SMITH, Circuit Judge:

Ronnie Kearby has had more than one brush with the law. His latest exploits led to a guilty plea of conspiracy to possess with intent to distribute methamphetamine ("meth"). The district court sentenced him to, among other things, 235 months. He appeals, challenging the procedural and substantive reasonableness of his sentence. We affirm.

I.

During May and June 2016, Kearby daily received between one and three ounces (28.35 and 85.05 grams, respectively) of meth from Nicole Herrera, whose supplier was Pablo Morales, who had imported the drugs from Mexico. Kearby consumed some of the meth but mainly distributed it around Dallas-Fort Worth. He was arrested in late June 2016. Fifteen months later, he pleaded guilty (without a plea agreement) of conspiracy to possess with intent to distribute meth in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846.

Section 2D1.1 of the U.S. Sentencing Guidelines ("U.S.S.G.") established Kearby’s base offense level by reference to the quantity of drugs involved in his conduct. To calculate that quantity, the presentence investigation report ("PSR") estimated (conservatively) that Kearby had purchased one ounce of meth per day. That estimate came from Herrera’s statement to investigators that she’d given Kearby one to three ounces per day. The PSR multiplied that quantity by sixty days—the period that Herrera said Kearby had participated in the conspiracy. All told, the PSR’s "conservative estimate" was 1,701 grams, yielding a base offense level of 32.

Next, the PSR applied a two-level importation enhancement under U.S.S.G. § 2D1.1(b)(5) because the drugs had come from Mexico. It also recommended a three-level reduction for acceptance of responsibility. The net offense level was 31, and because of Kearby’s lengthy past, the criminal history category was VI. The PSR thus recommended a guideline range of 188 to 235 months.

Kearby objected to the PSR on three main grounds.¹ First, he contested Herrera’s reliability in providing information for the drug-quantity estimate. He pointed out that Herrera had faked cooperation with the Drug Enforcement Administration and duped an agent into returning her cellphone, at which point she promptly deleted her text messages from after June 2016, which destroyed critical evidence. Kearby also said that he had participated in the conspiracy for less than the sixty days Herrera alleged. Next, Kearby objected to the importation enhancement. There was "no evidence," he claimed, that he had "ever directly or indirectly imported any [meth] from Mexico" nor that he knew the drugs were imported. Finally, he complained that he should have received a minor-participant reduction under U.S.S.G. § 3B1.2, since he had participated for (in his view, less than) two months in a conspiracy that spanned forty.

The probation office refused to change its recommendations. The PSR’s addendum noted that Herrera had been a credible and reliable source; that it was irrelevant whether Kearby knew the drugs had been imported; and that Kearby was an average, not minor, participant in the conspiracy.

Fast forward to sentencing. Kearby called Special Agent Brian Finney, who had interviewed Herrera, hoping that Finney’s testimony would help show that the PSR had overestimated the quantity of drugs. Things didn’t go as Kearby wished. Finney confirmed that Herrera’s phone didn’t have any text messages between her and Kearby from before May 22, 2016, and that Herrera had deleted relevant information from it. But Finney also testified that Herrera had stated she sold one to three ounces a day to Kearby; not all of Herrera’s sales had a corresponding text message; Herrera’s scoops had proven reliable and accurate in Kearby’s and others’ cases; with Herrera’s help, investigators had tracked down many other defendants; and the government had corroborated most of Herrera’s statements. The upshot: Finney "felt confident, based on what we were able to corroborate through her Facebook and text messages, as well as our own independent investigation, that [Herrera] was being honest with us."

The court overruled Kearby’s objections to the drug-quantity calculation, the importation enhancement, and the refusal to apply the minor-participant reduction. It found that the PSR had reasonably estimated the quantity based on "reliable information" and that Herrera was a credible informant. Citing our precedent, the court concluded that the importation enhancement applied regardless of Kearby’s knowledge. And it adopted the PSR’s finding that Kearby did not deserve a minor-participant reduction. Accordingly, it calculated a guideline range of 188 to 235 months and concluded that a 235-month sentence was appropriate in view of Kearby’s criminal history.

Kearby appeals the sentence. He insists, among other things, that the district court erred in calculating the quantity of drugs, applying the importation enhancement, denying a minor-participant reduction, assuming the guidelines were mandatory, imposing an alternative sentence, and handing down a substantively unreasonable sentence.

II.

We review sentences for reasonableness. Gall v. United States , 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "Using a bifurcated review process, we first examine whether the district court committed any significant procedural error. If the district court’s decision is procedurally sound, we then consider the substantive reasonableness of the sentence." United States v. Nguyen , 854 F.3d 276, 280 (5th Cir. 2017) (citation omitted).

A.

Kearby’s main assertion is that the district court procedurally erred in calculating the quantity of drugs. We begin with the contentions that he preserved in the district court.

1.

Kearby challenged the reliability of the calculation of quantity. That calculation "is a factual determination," so we will not set it aside unless it was implausible in light of the whole record. United States v. Alford , 142 F.3d 825, 831 (5th Cir. 1998). "When making factual findings for sentencing purposes, [the] district court[ ] may consider any information which bears sufficient indicia of reliability to support its probable accuracy." United States v. Harris , 702 F.3d 226, 230 (5th Cir. 2012) (per curiam) (quotation marks omitted). Thus, it may "adopt facts contained in a PSR without inquiry, if those facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence." United States v. Puig-Infante , 19 F.3d 929, 943 (5th Cir. 1994). "[A] district court may consider estimates of the quantity of drugs for sentencing purposes."²

First, Kearby asserts that because the government didn’t corroborate Herrera’s statements about the quantity sold to Kearby , the court clearly erred in relying on Herrera’s information. We reject that contention. If uncorroborated hearsay is sufficiently reliable, a district court may rely on it in making sentencing findings. United States v. Malone , 828 F.3d 331, 337 (5th Cir. 2016). And the court can consider the statements of coconspirators such as Herrera—even statements that are "somewhat imprecise"—in calculating drug quantity.³ The information that Herrera supplied about Kearby was reliable. Finney noted that Herrera had helped the government track down at least fifteen other defendants and that a "large majority" of the information she provided had been corroborated. Even if investigators did not specifically corroborate her report of the quantity sold to Kearby, Kearby has failed to show that it was implausible that her statements were accurate. See Alford , 142 F.3d at 831.

Next, Kearby maintains that a better estimate is that he received meth for 39 days, not 60. He points out that there were no text messages between him and Herrera that predated May 22, 2016, and that he was arrested on June 29, 2016. But because the 60-day finding was not implausible, we reject Kearby’s contention. See id. Finney testified that Herrera didn’t associate every transaction with a text message. He also stated that some of Herrera’s texts from May 22 indicated that Herrera and Kearby had had "prior contact about [meth]." Thus, the 60-day finding wasn’t clearly erroneous.

Finally, Kearby attacks Herrera’s general credibility as a source. He notes that she destroyed evidence and claims she had a motive to lie to "receive reductions in her own sentence." Kearby forgets, however, that we defer to a sentencing court’s credibility determinations.⁴ The district court carefully questioned Finney about Herrera before concluding that she was credible. That is more than enough to trigger our deference.

2.

For the first time on appeal, Kearby raises several contentions related to the drug-quantity calculation. Because they were not preserved, we exercise plain-error review. United States v. Jones , 489 F.3d 679, 681 (5th Cir. 2007). The first requirement of plain error is that the "appellant must show (1) an error or defect ...." United States v. Daniel , 933 F.3d 370, 382 (5th Cir. 2019) (and quotation marks omitted). There is no error, plain or otherwise.

First, Kearby contends that the district court erred as a matter of law in using a "multiplier method" to calculate the drug quantity. He suggests that "[e]stimation of drug quantity using the ‘multiplier’ method is only appropriate where a known quantity of drugs is involved in a particular occurrence ... and is extrapolated to other such occurrences."

We disagree that the court applied a "multiplier method," and Kearby’s formulation proves it. There wa...