United States v. Harris

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 7, 2006

Charles R. Fulbruge III
Clerk
No. 05-51234
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY LYNN HARRIS, also known as Jeffrey L. Harris,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas
(6:05-CR-79-2)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jeffrey Lynn Harris pleaded guilty to an indictment count

charging him (and others) with attempting to manufacture a mixture

and substance containing a detectable amount of methamphetamine, in

violation of 21 U.S.C. §§ 841(a) and 846. He was sentenced, inter

alia, to 168 months in prison.

For the first time on appeal, Harris contends the court

violated United States v. Booker, 543 U.S. 220 (2005), when it

relied solely on the Sentencing Guidelines in calculating his

*
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this opinion should not be published and is not precedent except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.
sentence and allegedly failed to take into consideration the

factors provided in 18 U.S.C. § 3553(a). He contends: the court,

by doing so, effectively applied the mandatory guidelines regime

rejected in Booker’s companion case, Fanfan; and a remand for

sentencing under the advisory guidelines scheme is thus required.

We review only for plain error. See United States v. Olano,

507 U.S. 725, 734 (1993). Harris is required, as a result, to show

clear or obvious error affected his substantial rights. Id. He

fails to do so. A post-Booker discretionary sentence imposed

within a properly-calculated guideline range is presumptively

correct. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006). In such circumstances, we will infer that the judge

considered all statutory factors as required by Booker. See United

States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005). Harris’ 168-month prison term was at the bottom of

the 168-to-210 month Guidelines range. Because, as discussed

below, Harris has not demonstrated that the guideline range in his

case was improperly calculated, we infer that the court considered

the § 3553(a) factors.

Also for the first time on appeal, Harris contends the

sentencing evidence was insufficient to support the two-level

increase, under U.S.S.G. § 2D1.1(b)(6)(A), for discharging

hazardous substances or waste. Again, we review only for plain

error. Contrary to Harris’ suggestion, his Presentence

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Investigation Report (PSR) stated that Harris had not only

“discharged”, but also “stor[ed]”, hazardous material. The PSR

stated, and a police officer testified at sentencing, that a

methamphetamine laboratory was found in the wooded area behind

Harris’ apartment and that the laboratory included a storage tank

containing anhydrous ammonia. Harris does not dispute that this

substance qualified as “hazardous”. See United States v. Stepan,

66 F. App’x 524, 524 (5th Cir. 2003). The unrebutted PSR

information and sentencing testimony bore sufficient indicia of

reliability to support finding Harris had stored the anhydrous

ammonia. See United States v. Ingles, 445 F.3d 830, 839 (5th Cir.

2006); United States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002).

Harris has not established error, plain or otherwise.

Harris further contends the court erred in calculating the

drug quantity attributable to him for sentencing purposes. He

maintains he admitted to being responsible for only 87.5 grams of

controlled substance but asserts the court improperly increased

this total to nearly 750 grams on the basis of “weak”, hearsay

evidence. To the extent he contends Booker requires a greater

quantum of proof at sentencing than before, he is incorrect.

See Mares, 402 F.3d at 519 (citing Booker, 543 U.S. at 233, 259-

60). Harris presented nothing at sentencing (and identifies no

evidence now) to rebut a codefendant’s debriefing information that

Harris had participated in multiple methamphetamine “cooks”

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involving approximately the drug quantity set forth in the PSR and

relied upon by the district court. See Ingles, 445 F.3d at 839.

Harris has not demonstrated the requisite clear error with respect

to the drug-quantity determination. See United States v.

Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir.), cert. denied,

126 S. Ct. 268 (2005).

AFFIRMED

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