Case: 20-10814 Document: 00515981949 Page: 1 Date Filed: 08/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 17, 2021
No. 20-10814
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Danny Jewell,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-363-1
Before Dennis and Engelhardt, Circuit Judges, and Hicks*, Chief
District Judge.
Per Curiam ∗:
Danny Jewell pleaded guilty, without a plea agreement, to one count
of conspiracy to possess with intent to distribute 50 grams or more of
*
Chief District Judge of the Western District of Louisiana, sitting by designation.
∗
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10814
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.
Jewell was sentenced to 275 months imprisonment followed by a four-year
term of supervised release. Jewell’s sentence was ordered to run
concurrently with any future sentence imposed in state Case No. DC-F2019-
00940 and consecutively with any future sentence imposed in state Case No.
F47605, both of which are pending in the 294th Judicial District Court,
Johnson County, Texas. Jewell challenges the procedural and substantive
reasonableness of his sentence. We affirm.
I.
Jewell was in state custody from 2013, until his release on August 27,
2018. 1 Sometime thereafter, he joined a methamphetamine distribution
chain. A methamphetamine supplier named Alfredo Trejo distributed the
drug to Jewell, co-defendant Karen Maxwell (Maxwell), a.k.a. Karen Ivey,
and others. Notably, Maxwell also received the drug from Mexico through an
unidentified source of supply. Maxwell then distributed her supply of
methamphetamine to Jewell and other co-defendants. Jewell would then
distribute to co-defendant Michael Pipkin (Pipkin). In March 2019,
Homeland Security and Drug Enforcement Administration agents initiated
an investigation into this distribution ring stemming from Johnson County
and other surrounding Texas counties.
From January or February 2019 to August 2019, Jewell completed
numerous methamphetamine transactions at his “residence,” according to
co-defendant Pipkin. On July 17, 2019, Johnson County Sheriff’s deputies
conducted a controlled buy of methamphetamine from Jewell at a home
located at 2023 East Henderson, Lot No. 20, Cleburne, Texas. Jewell was
1
Jewell was arrested on June 9, 2013, after a traffic stop revealed he had
methamphetamine in his vehicle. He was released on parole on August 27, 2018. A parole
revocation warrant was issued on September 25, 2019, in Case No. F47605 in the 294th
Judicial District Court, Johnson County, Texas.
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then arrested on September 10, 2019, by Johnson County Sherriff’s deputies
following a traffic stop.
Jewell was charged with a state offense for the manufacture or delivery
of a substance in Penalty Group 1. Shortly thereafter, on October 21, 2019,
Jewell, along with seven (7) other co-defendants, was named in a single-count
criminal complaint filed in the United States District Court for the Northern
District of Texas, Fort Worth Division. Jewell remained in state custody
from September 10, 2019, until he was transferred to the custody of the U.S.
Marshals Service on November 7, 2019, pursuant to a writ of habeas corpus
ad prosequendum. On January 28, 2020, Jewell pleaded guilty, without a plea
agreement, to the single-count complaint.
Prior to sentencing, the U.S. Probation Office prepared a Presentence
Investigation Report (PSR). Jewell’s base offense level of 31 was calculated
pursuant to U.S.S.G. § 2D1.1(c)(4) because his offense involved at least
3,000, but less than 10,000 kilograms of “Converted Drug Weight”
methamphetamine. This calculation included a two-level enhancement for
maintaining a premises for the purpose of manufacturing and distributing the
methamphetamine. U.S.S.G. § 2D1.1(b)(12). Jewell’s offense level was
decreased two levels for acceptance of responsibility and assisting
authorities. His criminal history category of VI reflected his 13 prior
convictions, four of which were felony drug offenses. His guideline range was
calculated at 188-235 months imprisonment.
The PSR was then modified by an addendum, that included an
increase of two points in his base offense level under U.S.S.G. § 2D1.1(b)(5),
because a portion of the methamphetamine possessed and distributed by
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Jewell was purportedly imported from Mexico. Jewell’s new guideline range
was raised to 235-293 months. Jewell objected to both enhancements.
At sentencing, the district court overruled Jewell’s objections to the
enhancements and denied his requests for a downward variance and credit
for time served in custody. The court imposed a 275-month term of
imprisonment followed by a four-year term of supervised release. The
sentence was ordered to run concurrent to any future sentence stemming
from Jewell’s state arrest on September 10, 2019, and consecutive to any
future sentence resulting from Jewell’s inevitable parole revocation. The
district court determined the sentence was sufficient but not greater than
necessary to comply with the purposes of 18 U.S.C. § 3553(a). Jewell timely
appealed.
II.
Jewell’s appeal is two-fold. First, in a series of four individual
assertions, Jewell argues the district court committed reversible procedural
error by (1) improperly applying two offense enhancements under U.S.S.G.
§§ 2D1.1(b)(5) and (b)(12); (2) failing to address the relevant sentencing
factors under 18 U.S.C. § 3553(a); (3) denying Jewell credit for time served
in custody pursuant to 18 U.S.C. § 3585(b); and (4) withholding an
explanation as to the court’s reasoning for concurrent and consecutive
sentences. Second, Jewell contends that the sentence is substantively
unreasonable.
A district court errs procedurally when it fails to properly calculate the
sentence, selects a sentence based on clearly erroneous facts, or fails to
adequately explain the sentence imposed. United States v. Duke, 788 F.3d
392, 396 (5th Cir. 2015). However, a procedural error is harmless if the error
did not affect the district court’s selection of the sentence. United States v.
Leontaritis, 977 F.3d 447, 452 (5th Cir. 2020). This is true even in instances
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where a district court failed to consider the correct guideline range so long as
“the proponent of the sentence convincingly demonstrates both (1) that the
district court would have imposed the same sentence had it not made the
error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” Id. (quoting United States v. Ibarra-Luna, 628 F.3d 712,
713-714 (5th Cir. 2010)).
Jewell’s procedural error claims can be further categorized into those
preserved before the district court and those unpreserved. His preserved
objections to the two sentencing enhancements included in the district
court’s guideline calculation are reviewed de novo and the district court’s
findings of fact are evaluated for clear error. United States v. Peterson, 977 F.3d
381, 392 (5th Cir. 2020). “The government must prove the facts underlying
a sentencing enhancement by a preponderance of the evidence.” United
States v. Arayatanon, 980 F.3d 444, 452 (5th Cir. 2020). A factual finding
which is “plausible in light of the record as a whole” is not clearly erroneous;
rather, there is clear error where review of the record results in “a definite
and firm conviction that a mistake has been committed.” Peterson, 977 F.3d
at 396 (quoting United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per
curiam)).
His unpreserved claims—that the district court did not consider all
relevant information, nor did it give full explanation for the chosen sentence
without credit for time served—are reviewable for plain error, which requires
a showing of a clear or obvious error that affected a substantial right and “has
a serious effect on the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012)) (internal quotation marks omitted).
We review the substantive reasonableness of Jewell’s sentence for
abuse of discretion and may presume the sentence is reasonable if it falls
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within the correctly calculated guideline range. Gall v. United States, 552 U.S.
38, 51, 128 S.Ct. 586, 597 (2007). However, this presumption may be
overcome by a showing “that the sentence does not account for a factor that
should receive significant weight, it gives significant weight to an irrelevant
or improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” Duke, 788 F.3d at 397 (quoting United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009)).
III.
Prior to imposing Jewell’s sentence, the district court adopted the
PSR and its addendum as the factual basis for Jewell’s calculated base offense
level, criminal history category, and advisory guideline range. Jewell objected
to the court’s calculation and the Government rebutted with testimony from
Jewell’s co-defendants to support the district court’s findings.
The PSR has a presumption of reliability; likewise, co-conspirators’
statements are reliable enough to form a factual finding basis. United States.
v. Rico, 864 F.3d 381, 386 (5th Cir. 2017). Any party challenging the reliability
of the PSR bears the burden of proving the material contained therein is
“materially untrue, inaccurate or unreliable.” United States v. Gomez-
Alvarez, 781 F.3d 787, 796 (5th Cir. 2015) (internal quotation marks and
citation omitted).
Jewell again challenges the inclusion of the two sentencing
enhancements pursuant to U.S.S.G. §§ 2D1.1(b)(5) and (b)(12) and avers
that the PSR and co-defendant testimony produced by the Government are
unsupportive of the enhancements due to the insufficient and erroneous
information contained therein.
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i. U.S.S.G. § 2D1.1(b)(5)
Section 2D1.1(b)(5) provides for a two-level increase in a defendant’s
base offense level should the charged offense involve “the importation of
amphetamine or methamphetamine….” U.S.S.G. § 2D1.1(b)(5). This
importation enhancement is applicable upon a showing by preponderance of
the evidence that the drug in question was imported. A defendant’s relevant
conduct may be considered in the analysis. U.S.S.G. § 1B1.3. The
defendant’s knowledge of the imported nature of the drug is inconsequential
to the analysis. United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012), cert
denied, 133 S.Ct. 623 (2012).
Jewell argues inclusion of the importation enhancement is
procedurally unreasonable because it is predicated on the erroneous facts of
the addendum which fail to prove the methamphetamine was imported.
Jewell seeks to undermine the reliability of the addendum by pointing out the
“unknowns” surrounding the importation of the drug—who is the source in
Mexico, when and where was the drug imported, and what is the chemical
makeup of the methamphetamine.
Furthermore, Jewell avers that the importation of the
methamphetamine does not constitute relevant conduct under section 1B1.3
of the guidelines. Commentary to the guideline underscores that a district
court must focus on determining the particular acts for which a defendant
should be held accountable. U.S.S.G. § 1B1.3, cmt. n.1. Jewell contends he
cannot be responsible for the importation of methamphetamine because he
did not agree to a “jointly undertaken criminal activity” with Maxwell.
U.S.S.G. § 1B1.3.
The PSR addendum indicates two sources from whom Jewell had the
opportunity to receive imported methamphetamine. First, Jewell’s co-
defendant Maxwell primarily received methamphetamine from an unknown
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source who received the drug from a source in Mexico. Maxwell would then
distribute methamphetamine to Jewell and his co-defendant, Darrell Wise
(Wise). Jewell is also known to have received the drug directly from Wise.
The Government offered corroborating evidence in the form of
testimony by co-defendant Wise who established that Maxwell was supplied
by an individual in Mexico. Wise stated this source would sell to Maxwell
approximately one kilogram of methamphetamine every one to two weeks.
The U.S. Probation Officer explained that these transactions were confirmed
by investigative case agents.
We find no error in the district court’s application of the importation
enhancement based on the information contained in the PSR addendum. It is
plausible that the district court could infer by a preponderance of the
evidence that at least some of the methamphetamine possessed by Jewell was
imported. See Arayatanon, 980 F.3d at 452.
As for Jewell’s argument that the importation cannot be treated as
relevant conduct, “distribution (or possession with intent to distribute) of
imported meth[amphetamine] even without more, may subject a defendant
to the § 2D1.1(b)(5) enhancement.” United States v. Kearby, 943 F.3d 969,
976-77 (5th Cir. 2019) (internal quotation marks omitted). The mere fact that
the Government was able to prove that the drug was “imported is enough to
warrant the enhancement.” United States v. Rodden, 481 Fed. Appx. 985, 985
(5th Cir. 2013).
We note that Jewell also encouraged this court to reconsider our
previous holding in Serfass and requests we either overrule or reestablish the
analysis a district court must conduct to evaluate whether the drug in
question was imported. We decline to overrule the precedent absent an en
banc sitting. We also believe that clarification of Serfass is unnecessary at this
time.
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ii. U.S.S.G. § 2D1.1(b)(12)
Section 2D1.1(b)(12) permits a two-level increase for any defendant
who “maintain[s] a premises for the purpose of manufacturing or distributing
a controlled substance….” U.S.S.G. § 2D1.1(b)(12). The defendant must
knowingly operate the premises for the principal or primary purpose of
substance manufacture, storage, or distribution. U.S.S.G § 2D1.1(b)(12),
cmt. n.17. A district court should consider “(A) whether the defendant held
a possessory interest in the premises and (B) the extent to which the
defendant-controlled access to, or activities at, the premises.” U.S.S.G §
2D1.1(b)(12), cmt. n.17.
Jewell again seeks to discredit the PSR by arguing that he does not
own, reside in, or control access to the house at 2023 East Henderson, Lot
No. 20, in Cleburne, Texas. He further underscores that Probation’s only
support for the enhancement is the known controlled buy that occurred at
the East Henderson house.
The PSR states that in 2019, Jewell distributed methamphetamine to
co-defendant Pipkin roughly 29 times at Jewell’s “residence.” That same
year, Johnson County Sheriff’s deputies conducted a controlled buy of
methamphetamine from Jewell at the East Henderson home. Finally, the
PSR records a receipt of methamphetamine by Jewell from a co-conspirator
at his residence in 2019.
To substantiate the assertion that Jewell operated the East Henderson
house for the purpose of methamphetamine distribution, the Government
offers the statements of co-defendant Pipkin who confirmed the transactions
with Jewell and further established that the sales were at Jewell’s residence.
To tie all transactions to the East Henderson house, the Government relies
on the PSR’s report that Jewell resided with his mother in the house from
2004-2019.
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As with the importation enhancement, we find no error in the district
court’s inclusion of the premises enhancement. A plausible inference may be
drawn that not only connects all known transactions at Jewell’s “residence”
with the East Henderson house, but also shows that Jewell operated the
house for his methamphetamine distribution and storage. See Arayatanon,
980 F.3d at 452. Though Jewell underscores that co-defendant Pipkin did not
identify the East Henderson house as Jewell’s residence, we agree with the
district court that the controlled buy by Johnson County Sheriff’s deputies at
the East Henderson house, coupled with the knowledge that Jewell resided
in the East Henderson house with his mother at the time of the conspiracy,
is enough to support a finding for the enhancement. Furthermore, the
number of transactions reported by the PSR and Pipkin confirms Jewell’s use
of the house for distribution was not incidental.
Even if the district court erred in applying both enhancements, we
believe those errors are harmless because, as the district court explained,
“[e]ven if the guideline calculations today are not correct, this would have
been the same sentence that [the court] would have imposed otherwise based
on [the court’s] review of the factors set forth in” 18 U.S.C. § 3553(a). The
factors contemplated by the district court, including Jewell’s history of
addiction and abuse, his extensive criminal history, and the need to deter
future criminal conduct, create an independent basis for the district court’s
chosen sentence. United States v. Medel-Guadalupe, 979 F.3d 1019, 1025 (5th
Cir. 2020) (per curiam) (finding that the error was not reversible because the
sentencing choice was made irrespective of the guidelines).
Reversal based on the calculation of the sentencing guidelines is not
warranted in light of the district court’s lack of clear error.
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IV.
Following imposition of a sentence, the district court must provide
enough explanation for the given sentence “to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decision-making authority.” Duke, 788 F.3d at 396
(5th Cir. 2015) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). If a
district court imposes a within guideline sentence, “little explanation” is
required. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Jewell believes the district court erred by failing to adequately
consider and explain all relevant section 3553(a) factors, the potential for
credit for time served, or the availability of concurrent and consecutive
sentences. However, the district court thoroughly discussed its reliance on
the information contained in the PSR and its addendum, its review of Jewell’s
sentencing memorandum, defense counsel’s arguments at sentencing, its
awareness of Jewell’s extensive criminal history and numerous prison
sentences, and the § 3553(a) factors. We find no shortage of explanation by
the district court.
We also believe Jewell’s contentions that the district court did not give
any reasons for denying him credit for time served or explain its decision to
impose concurrent and consecutive sentences lack merit. First, the Attorney
General is tasked with awarding credit, not the district courts. United States
v. Aparicio, 963 F.3d 470, 477 (5th Cir.), cert. denied, 141 S.Ct. 435 (2020). It
follows then that the district court cannot be in error when it fails to explain
a decision it cannot make. United States v. Whitelaw, 580 F.3d 256, 260 (5th
Cir. 2009). Second, “neither the Supreme Court nor this court has ever held
that a district court’s failure to explain its rationale for imposing consecutive
sentences constitutes procedural error.” United States v. Gozes-Wagner, 977
F.3d 323, 343 (5th Cir. 2020).
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Accordingly, we find no procedural error by the district court in its
consideration and explanation of Jewell’s sentence.
V.
We further find Jewell’s sentence to be substantively reasonable in
light of the district court’s consideration and discussion of all relevant section
3553(a) factors as detailed above. While Jewell avers that the district court
disregarded his continued battle with drug addiction, his history of abuse, and
underlying health issues, the district court was repeatedly made aware of
these factors in sentencing memoranda and oral arguments. The district
court ultimately determined that these factors were outweighed by the need
for respect for the law and the deterrence of criminal activity.
VI.
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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