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this opinion should not be published and is not precedent except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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