Case: 20-50585 Document: 00516155341 Page: 1 Date Filed: 01/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 5, 2022
No. 20-50585
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Andrew Ussery,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-35-1
Before Smith, Elrod, and Oldham, Circuit Judges.
Per Curiam:*
Andrew Ussery pleaded guilty to conspiring to possess with intent to
distribute fifty grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and § 841(b)(1)(A). Ussery was sentenced to 188 months’
imprisonment. On appeal, Ussery challenges the factual basis of his sentence
and the district court’s refusal to grant safety-valve relief under the
*
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opinion should not be published and is not precedent except under the limited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. 20-50585
Guidelines or an equivalent variance. Because there was a sufficient factual
basis for Ussery’s sentence and no procedural or substantive error, we
AFFIRM.
Ussery executed a factual basis for his plea. The factual basis
establishes the following facts. An Odessa Police Department detective
encountered Ussery in the parking lot of the MCM Grande Hotel and Fun
Dome. Knowing that Ussery had outstanding arrest warrants, the detective
contacted the Texas Department of Public Safety, which then initiated a
traffic stop. Ussery fled the traffic stop, crashed, and threw a bag of about
326 grams of methamphetamine out of the car window and over a barbed wire
fence. Ussery’s car also contained Psilocybin mushrooms. Ussery was
arrested and transported to the Odessa Police Department.
After reading Ussery his Miranda rights, law enforcement learned that
Ussery had two hotel rooms at the MCM Fun Dome. Law enforcement
returned to the hotel, where they found a woman in one room and more
methamphetamine in both. Ussery was indicted on one count of conspiring
to possess with intent to distribute fifty grams or more of actual
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A).
Ussery pleaded guilty. The district court accepted Ussery’s plea, and
the Probation Office prepared a presentence investigation report (PSR). The
PSR first calculated the quantity of drugs attributable to Ussery. It relates
that on the night in question, officers at the hotel located a woman—different
from the one in Ussery’s hotel room—under investigation by the DEA. After
being read her Miranda rights, the woman stated that she was talking with
Ussery on the phone when he was stopped by law enforcement, that she
believed Ussery to be high on mushrooms at the time, and that she had
distributed “approximately one pound (453.592 grams) of
methamphetamine for Ussery beginning in approximately October 2019.”
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Based on the woman’s statement and the amount of methamphetamine in
the hotel rooms and the bag Ussery threw over the fence, the PSR concluded
that Ussery was responsible for a total of 758.292 grams of
methamphetamine.
The PSR gave Ussery a Total Offense Level of 33 and a Criminal
History Category of IV. Based on these scores, the PSR calculated an
imprisonment range of 188–235 months. The district court adopted the PSR
recommendation and sentenced Ussery to 188 months’ imprisonment.
Ussery first argues that there was an insufficient factual basis for the
woman’s statement that he supplied her with a pound of methamphetamine.
The district court may consider facts in a PSR as long as they “have an
adequate evidentiary basis with sufficient indicia of reliability.” United States
v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Trujillo,
502 F.3d 353, 357 (5th Cir. 2007)). If they do, the burden flips to the
defendant to present rebuttal evidence “demonstrating that those facts are
‘materially untrue, inaccurate or unreliable.’” Id. (quoting United States v.
Huerta, 182 F.3d 361, 364–65 (5th Cir. 1999)).
The facts have an adequate evidentiary basis with sufficient indicia of
reliability. The woman was at the MCM hotel; Ussery had two rooms at the
MCM. The woman stated that she distributed methamphetamine for Ussery
in the past; Ussery pleaded guilty to conspiring to distribute
methamphetamine. The woman believed that Ussery was high on
mushrooms in his car; and Ussery had mushrooms in his car. This is an
adequate evidentiary basis with sufficient indicia of reliability. Because
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Ussery presented no rebuttal evidence, the district court did not err in relying
on those facts.1
Construed generously, Ussery’s brief raises two further alleged
errors. First, Ussery argues that the district court erred by applying the
“criminal history” factor in § 5C1.2 of the Guidelines instead of the amended
factor in 18 U.S.C. § 3553(f). Second, he argues that the district court
wrongly declined to grant an equivalent downward variance.
Section 3553(f) provides safety-valve relief for defendants who meet
five requirements. Where, among other requirements, a defendant has four
or fewer criminal history points and sufficiently cooperates with law
enforcement, the district court must “impose a sentence pursuant to
guidelines promulgated by the United States Sentencing Commission . . .
without regard to any statutory minimum sentence.” 18 U.S.C. § 3553(f).
The Guidelines provide analogous relief in § 5C1.2, which generally
reproduces the factors in § 3553(f). Furthermore, the Guidelines require a
two-level Offense Level reduction for defendants who satisfy the
1
“[O]ut-of-court declarations by an unidentified informant may be considered
‘where there is good cause for the nondisclosure of his identity and there is sufficient
corroboration by other means.’” United States v. Young, 981 F.2d 180, 186 (5th Cir. 1992)
(quoting commentary to U.S.S.G. § 6A1.3). Ussery has not argued that the government
lacked good cause for nondisclosure and does not argue it here. See id. at 187. Even if he did
raise the issue, “[w]e will not find plain error in the failure to adequately justify
nondisclosure of [confidential informants] unless it is clear from the record that this
rendered the sentencing process wholly unreliable.” Id. The nondisclosure did not have
this effect.
In his reply brief, Ussery also notes the government’s admission of ambiguity in
the sentencing transcript about whether the woman in Ussery’s room and the unidentified
informant were one and the same. Although the sentencing transcript was ambiguous, the
PSR was not. Furthermore, we do not “entertain arguments raised for the first time in a
reply brief.” United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Because the
alleged ambiguity occurred at sentencing, Ussery should have objected at that time.
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requirements of § 5C1.2. U.S.S.G. § 2D1.1(b)(18). However, the Guidelines
have not been amended to conform to the current § 3553(f), and § 5C1.2 still
precludes from relief defendants—like Ussery—with more than 1 criminal
history point. U.S.S.G. § 5C1.2(a)(1). Accordingly, Ussery asked the district
court for a variance equivalent to the two-level Offense Level reduction from
which he would not be precluded if the Guidelines reflected the current
§ 3553(f). The district court declined to grant the downward variance.
We review federal criminal sentences for reasonableness. Harris, 702
F.3d at 229. First, we ensure that the district court committed no significant
procedural error, such as “improperly calculating the Guidelines range,
treating the Guidelines as mandatory, or selecting a sentence based on
erroneous factors.” Id. We review the interpretation and application of the
Guidelines de novo, subject to the harmless error standard. United States v.
Torres-Perez, 777 F.3d 764, 768 (5th Cir. 2015). Next, we review the
substantive reasonableness of the sentence. Harris, 702 F.3d at 229.
Substantive reasonableness is reviewed for abuse of discretion and includes
claims that the district court erred in denying a downward variance. United
States v. Douglas, 957 F.3d 602, 609 (5th Cir. 2020).
The district court did not procedurally err. The government
contended at sentencing that Ussery did not sufficiently cooperate with law
enforcement as required for relief under § 5C1.2. It is the defendant’s burden
to show that he satisfies this element, and Ussery did not do so. See United
States v. Gonzalez-Loya, 639 F. App’x 1023, 1026 (5th Cir. 2016). Ussery is
therefore not entitled to safety-valve relief under § 5C1.2.
Even if he were, to the extent Ussery argues that the district court
misapplied or misinterpreted § 5C1.2 by failing to apply the amended
“criminal history” factor in § 3553(f), any such error would be harmless.
Safety-valve relief under § 5C1.2 would have decreased Ussery’s
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recommended guideline range from 188–235 months to 151–188 months. As
the district court explained at relative length, it would have imposed the 188-
month sentence even under the lower range. Because the district court
would have imposed the 188-month sentence either way, any error in failing
to grant relief under § 5C1.2 would be harmless.2
Finally, Ussery’s sentence is substantively reasonable. A “sentence
within a properly calculated Guideline range is presumptively reasonable.”3
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). There is nothing
to suggest that Ussery’s sentence is unreasonable, and Ussery fails to rebut
the presumption to the contrary.
* * *
For these reasons, the district court’s sentence is AFFIRMED.
2
Few cases have addressed whether § 5C1.2 incorporates the amended § 3553(f)
factors as opposed to the factors it expressly lists. See United States v. Leri, 849 F. App’x
898, 900 (11th Cir. 2021) (suggesting that § 5C1.2 does not incorporate the amended
criteria in § 3553(f) and concluding that the district court’s decision to that effect was not
plain error); United States v. Shanklin, 835 F. App’x 145, 146 (7th Cir. 2021) (concluding
that an argument that § 5C1.2 incorporates the amended § 3553(f) factors would be
frivolous). We need not weigh in either way. We note only that because Ussery did not
argue below that the amended § 3553(f) factors apply instead of those in § 5C1.2, plain-
error review applies to this claim. United States v. Duke, 788 F.3d 392, 396 (5th Cir. 2015).
Under plain-error review, the “defendant must show a clear or obvious error that affects
his substantial rights.” United States v. Mudekunye, 646 F.3d 281, 287 (5th Cir. 2011). Even
assuming plain error, as explained above, the error would be harmless and therefore would
not affect Ussery’s substantial rights.
3
We have held that even when a district court miscalculates the guideline range,
its sentence is presumptively reasonable if it falls within the properly calculated guideline
range. United States v. Medina-Argueta, 454 F.3d 479, 483 (5th Cir. 2006). Because the 188-
month sentence falls within both the higher and lower guideline ranges, it would be
presumptively reasonable no matter which range applies.
6