Case Information
*1 Case: 21-50519 Document: 00516260672 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 30, 2022 No. 21-50519 Lyle W. Cayce Summary Calendar Clerk United States of America,
Plaintiff—Appellee , versus
Don Smiley,
Defendant—Appellant . Appeal from the United States District Court for the Western District of Texas No. 7:21-CR-2-1
Before Smith, Stewart, and Graves, Circuit Judges .
Per Curiam: *
Don Smiley appeals the sentence imposed for his conviction of pos- session with intent to distribute five grams or more of actual methampheta- mine (“meth”). The district court assessed a base offense level of 32 under U.S.S.G. § 2D1.1(c)(4) after finding that Smiley was responsible for no less *2 Case: 21-50519 Document: 00516260672 Page: 2 Date Filed: 03/30/2022
No. 21-50519 than 344 grams of actual meth, a total that included 6.5 grams that were seized in a controlled buy. Smiley challenges the district court’s extrapola- tion of the purity level of the 337.5 grams of unseized meth.
We review for clear error the district court’s finding regarding purity. See United States v. Lucio , 985 F.3d 482, 485 (5th Cir.), cert. denied , 142 S. Ct. 177 (2021). Based on Smiley’s statements in his police interview, it was rea- sonable for the court to infer that depending on availability, he interchangea- bly obtained a comparable purity of meth from his two sources. See id. at 488; United States v. Rodriguez , 666 F.3d 944, 947 (5th Cir. 2012). Additionally, there is no evidence indicating that the purity level of the unseized meth actu- ally was dissimilar to the 97% purity of the meth in the controlled buy. Based on the record as a whole, it was plausible for the district court to find that the disputed 337.5 grams of meth had a level of purity sufficient to support a base offense level of 32 under § 2D1.1(c)(4). Thus, the finding was not clearly erroneous. See Lucio , 985 F.3d at 485–88; Rodriguez , 666 F.3d at 947.
AFFIRMED .
2
[*] Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.