Case: 17-30559 Document: 00514446080 Page: 1 Date Filed: 04/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30559
Fifth Circuit
FILED
Summary Calendar April 25, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
LARRY MOORE ALSTON, JR., also known as Boosie,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CR-125-2
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Larry Moore Alston, Jr., pled guilty, pursuant to a plea agreement, to
one count of conspiring to distribute and to possess with the intent to distribute
a mixture and substance containing a detectable amount of cocaine and a
mixture and substance containing a detectable amount of methamphetamine.
He received a 225-month prison sentence, which he now challenges on appeal.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30559 Document: 00514446080 Page: 2 Date Filed: 04/25/2018
No. 17-30559
Alston asserts that the district court violated the Confrontation Clause
by relying on laboratory reports to assess the purity of the methamphetamine
attributable to him at sentencing, and cites Crawford v. Washington, 541 U.S.
36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Alston
did not raise this argument in the district court. Regardless, he has shown no
error, plain or otherwise, because the Confrontation Clause does not apply at
sentencing. See United States v. Ellis, 720 F.3d 220, 228 (5th Cir. 2013).
To the extent Alston argues that, based on all the evidence amassed
during discovery, plea negotiations, and rearraignment, his offense level
should have been calculated based on a finding that the offense involved a
mixture containing methamphetamine and not actual methamphetamine, he
has not demonstrated that the district court clearly erred. See United States
v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012). Where a defendant pleads
guilty to an offense involving a mixture or substance containing
methamphetamine, the “offense level [is] determined by the weight of the pure
methamphetamine in the mixture or substance if doing so would result in a
higher offense level.” United States v. Molina, 469 F.3d 408, 414 (5th Cir. 2006)
(citing U.S.S.G. § 2D1.1(c) n.B). The presentence report’s reliable, unrebutted
findings as to the purity of the methamphetamine attributable to Alston, which
were based on laboratory reports provided by the Government, were sufficient
to support the court’s offense level determination. See United States v. Koss,
812 F.3d 460, 469 (5th Cir. 2016).
The district court’s judgment is AFFIRMED.
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