IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20747
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER MICHAEL KEISSLING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-133-1
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June 18, 2001
Before JOLLY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Christopher Michael Keissling pleaded guilty to possession
with intent to distribute methamphetamine. At sentencing, he
objected that the full 37.9 grams of methamphetamine seized was
not intended for distribution and should not have been included
in the sentencing calculations; he argued that he intended to
sell only 2 grams with the remainder for his personal use. The
district court overruled the objection, finding Keissling’s
testimony was not credible and that he had not shown that any of
the seized methamphetamine was for his personal use.
*
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 00-20747
-2-
A district court’s findings of fact are reviewed for clear
error. See United States v. Posada-Rios, 158 F.3d 832, 878 (5th
Cir. 1998). A factual finding is not clearly erroneous as long
as it is plausible in the light of the record read as a whole.
See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). We
need not decide the question whether amounts for personal use
should be excluded from sentencing calculations for a conviction
for possession with intent to distribute because we conclude that
the district court’s factual finding was not clearly erroneous.
The district court found Keissling’s testimony was not
credible, particularly his testimony regarding the large amount
of methamphetamine he allegedly used on a daily basis.
Credibility determinations are within the province of the
district court as trier-of-fact. See United States v. Sotelo, 97
F.3d 782, 799 (5th Cir. 1996). Keissling also admitted that he
regularly sold methamphetamine and that he intended to sell
methamphetamine to the residents of the apartment where the
seizure occurred. Although he asserted that he used
methamphetamine with the apartment residents, one resident denied
using any drugs that night and the other admitted only crack
cocaine use. Keissling also asserted that he supported his drug
habit by selling methamphetamine, but he failed to explain how he
could support his allegedly voracious drug habit by using more
drugs than he sold. Therefore, we conclude that the district
court’s inclusion of the full amount seized was not clearly
erroneous.
No. 00-20747
-3-
Keissling also argues that the indictment failed to specify
the quantity of drugs seized, violating the Fifth and Sixth
Amendments and precluding a determination of any quantity other
than the guideline minimum. He acknowledges that he did not
raise this claim below, and that review is limited to plain
error. Keissling relies on Apprendi v. New Jersey, 530 U.S. 466
(2000), but he acknowledges that this court has limited its
holding to cases in which a sentence is increased beyond the
statutory maximum. Factual determinations of the district court
concerning drug amounts used to calculate a sentence within a
statutory range are not called into question by Apprendi. See
United States v. Meshack, 225 F.3d 556, 576-77 (5th Cir. 2000).
Keissling was informed during his rearraignment that the maximum
statutory penalty was 20 years’ imprisonment (or 240 months), and
he was sentenced to only 90 months’ imprisonment. Therefore,
Keissling has failed to show error, plain or otherwise.
The judgment of the district court is AFFIRMED.