693 F. App'x 374
5th Cir.
2017
Case Information

*1 Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM: [*]

Eric Overstreet contests the 240-month prison sentence imposed following his conviction for conspiracy to possess with intent to distribute a controlled substance. He first argues that the district court, at sentencing, violated his rights of due process, to a fair trial, and to confront and cross examine an adverse witness by relying on hearsay statements of a deceased declarant in assessing several offense level enhancements. As Overstreet concedes, this issue is foreclosed. See United States v. Beydoun , 469 F.3d 102, 108 (5th Cir. 2006).

Next, Overstreet challenges the offense level enhancements under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm, under § 2D1.1(b)(2) for making a credible threat to use violence, and under § 3B1.1(b) for his role as a manager or supervisor. As to the enhancements under § 2D1.1(b)(1) and (2), the district court’s factual findings were plausible in light of the record as a whole, given the statements that Overstreet brandished a gun during a drug transaction while accusing the declarant of trying to rob him. See United States v. Rodriguez-Guerrero , 805 F.3d 192, 195 (5th Cir. 2015); United States v. Medrano-Rodriguez , 606 F. App’x 759, 761-62 (5th Cir. 2015); § 2D1.1, comment. (n.11(B)). The district court found the statements reliable in light of testimony from a law enforcement agent at sentencing, and we defer to that determination. See United States v. Juarez-Duarte , 513 F.3d 204, 208 (5th Cir. 2008). Regarding the § 3B1.1(b) role enhancement, the district court’s factual findings were likewise plausible because the record indicates that there were five or more participants involved in the criminal activity; Overstreet paid the declarant to assist him with drug transactions; the declarant’s role was to follow Overstreet and run interference in the event of an encounter with law enforcement; and, contrary to Overstreet’s assertions, the declarant did not act as a confidential informant for law enforcement. See United States v. Bowen , 818 F.3d 179, 192 (5th Cir.), cert. denied , 136 S. Ct. 2477 (2016); § 3B1.1(b) & comment. (n.1). Accordingly, the district court’s assessment of these three offense-level enhancements was not clearly erroneous. See United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013).

Finally, Overstreet argues that the district court imposed a substantively unreasonable sentence by failing to give sufficient weight to certain aspects of his history and characteristics. Because the district court imposed a within-guidelines sentence, it is presumptively reasonable. United States v. Jenkins , 712 F.3d 209, 214 (5th Cir. 2013). At sentencing, the district court considered the factors that Overstreet discusses in his appellate brief and found that a within-guidelines sentence was appropriate. We perceive no failure by the court to account for a factor that should have received significant weight, no reliance on an improper factor, and no clear error of judgment in balancing the factors. See id . Moreover, we decline to reweigh the 18 U.S.C. § 3553(a) sentencing factors or reexamine their relative import, nor will we reverse the district court on the basis that we could reasonably conclude that a different sentence was appropriate. See Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Rodriguez-Bernal , 783 F.3d 1002, 1008 (5th Cir. 2015). The district court did not abuse its sentencing discretion.

AFFIRMED.

Notes

[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.

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