Case: 16-11702 Document: 00514133340 Page: 1 Date Filed: 08/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11702 FILED
Summary Calendar August 28, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEMARCUS KEMP,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-123-5
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
DeMarcus Kemp was convicted of one charge of conspiring to distribute
hydrocodone and was sentence to serve 175 months in prison and a three-year
term of supervised release. He challenges his sentence, arguing that the
district court erred by concluding that controlled substances other than
hydrocodone should be used to calculate his sentence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-11702 Document: 00514133340 Page: 2 Date Filed: 08/28/2017
No. 16-11702
The district court’s determination of the quantity of drugs attributable
to a defendant is a factual finding that we review for clear error. United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A finding of fact is not clearly
erroneous if it is plausible in light of the record as a whole. Id. Put differently,
a factual “finding will be deemed clearly erroneous if, based on the record as a
whole, we are left with the definite and firm conviction that a mistake has been
committed.” United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009)
(internal quotation marks and citation omitted). Kemp has not met this
standard.
In calculating an offense level, a district court may consider the
defendant’s relevant conduct, which includes “all acts and omissions that the
defendant committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused” and which occurred “during the commission of
the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1)(A). “With respect to offenses involving contraband (including
controlled substances), the defendant is accountable under subsection (a)(1)(A)
for all quantities of contraband with which he was directly involved.” § 1B1.3,
comment.(n.3(D)).
The record shows that Kemp was directly involved with the disputed
controlled substances. That is, he took part in the burglaries during which
these substances, which were later distributed, were stolen. Accordingly, the
district court did not clearly err by determining that all of the controlled
substances should be used to calculate Kemp’s sentence. See § 1B1.3,
comment.(n.3(D)); see also United States v. Wall, 180 F.3d 641, 644 (5th Cir.
1999).
AFFIRMED.
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