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United States v. Lucio

Court: Court of Appeals for the Fifth Circuit
Date filed: 2021-01-14
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Case: 19-11252     Document: 00515707934         Page: 1   Date Filed: 01/14/2021




           United States Court of Appeals
                for the Fifth Circuit                              United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                   January 14, 2021
                                  No. 19-11252
                                                                     Lyle W. Cayce
                                                                          Clerk
   United States of America,

                                                           Plaintiff—Appellee,

                                      versus

   Anthony Herman Lucio,

                                                        Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:19-CR-174-1


   Before Stewart, Duncan, and Wilson, Circuit Judges.
   Stuart Kyle Duncan, Circuit Judge:
         Anthony Herman Lucio pleaded guilty of dealing methamphetamine.
   On appeal, he contests only how much meth should inform his sentence.
   Lucio’s presentence report estimated the amount based on his cryptic texting
   with another dealer, illumined by testimony from Lucio’s co-conspirator and
   a drug enforcement agent. The district court accepted those findings, a
   decision to which we generously defer. We AFFIRM.
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                                         No. 19-11252


                                               I
           Lucio was charged with conspiring to distribute methamphetamine
   (“meth”), in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). The
   charge arose from a series of events that occurred between December 2018
   and February 2019. After receiving a tip from a confidential source, law
   enforcement arranged to buy about three ounces of “ice” 1 from Lucio in two
   controlled transactions. Lucio told the source he would sell a kilogram of
   “ice” for $6,500. Shortly thereafter, officers arrested Lucio on an active
   felony warrant and searched his residence pursuant to a search warrant. They
   also arrested two other men seen leaving the home: Murrell Wilson, who is
   Lucio’s uncle-in-law, and Ramiro Cantu. The search of the residence
   revealed meth, cocaine, marijuana, firearms, and over $16,000 in cash. The
   officers also found marijuana in a vehicle and $1,800 in Cantu’s possession.
           Wilson made a statement after his arrest. He told officers that he lived
   with Lucio, that Lucio was a drug dealer, and that he delivered meth, cocaine,
   and marijuana for Lucio in lieu of rent payments. Not only had he personally
   delivered two to three ounces of meth to an unknown individual on one
   occasion, but he and Lucio had also obtained two to three pounds of the
   substance a month before their arrests. He identified four occasions when



       1
         The United States Sentencing Guidelines define “ice” as “a mixture or substance
   containing d-methamphetamine hydrochloride of at least 80% purity.” U.S. SENT’G
   GUIDELINES MANUAL § 2D1.1(c) note C (U.S. SENT’G COMM’N 2018). The type and
   quantity (measured by weight) of drugs involved in the offense impacts the penalty
   assessed. In general, “the weight of a controlled substance set forth in the [Drug Quantity
   Table] refers to the entire weight of any mixture or substance containing a detectable
   amount of the controlled substance.” Id. note A. When the substance is mixed, only the
   weight of the controlled substance itself is counted. Thus, “methamphetamine (actual)”
   refers to “the weight of the controlled substance, itself, contained in the mixture or
   substance. For example, a mixture weighing 10 grams containing [methamphetamine] at
   50% purity contains 5 grams of [methamphetamine] (actual).” Id. note B.




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                                       No. 19-11252


   Lucio received ten kilograms of “ice” and a fifth when Lucio received one
   kilogram. Finally, Wilson asserted Lucio had stored forty-eight kilograms of
   “ice” in a relative’s storage shed. Lucio stated, however, that none of the
   narcotics or firearms found at his residence belonged to him.
          Officers obtained a warrant for Lucio’s cell phone and found a text
   message conversation between him and an unidentified person. The
   conversation discussed “24 or 25” units of “food” that were ready for Lucio
   to pick up at McDonald’s. This is the relevant portion of the conversation,
   translated from Spanish:
      Unidentified Person: Yes everything [is] good here, what time do I
      take you the food? [D]o you have the paper because I want to give it
      to that guy.
      Lucio: How many of them are there[?]
      Unidentified Person: 24 or 25.
      [Later, the two arranged to meet at a McDonald’s. Shortly thereafter,
      the unidentified person sent the following texts:]
      Unidentified Person: Everything good or what cousin[?] . . . [S]end
      me a text when you arrive to your house . . . Cousin . . . how does it
      look cousin[?]
   The officer who conducted the search interpreted this as a negotiation for
   twenty-four or twenty-five kilograms of meth.
          Lucio pleaded guilty of conspiracy to possess with intent to distribute
   a controlled substance. Before sentencing, the Probation Office prepared a
   presentence investigation report (“PSR”) that calculated the quantity of
   drugs attributable to Lucio. By the PSR’s calculations, Lucio was accountable
   for 109,294.25 kilograms of converted drug weight. 2 This total included:


      2
        When different controlled substances are involved, courts use the Drug Conversion
   Tables in the Sentencing Guidelines to obtain a single offense level. See U.S. SENT’G




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                                       No. 19-11252


      • 0.08333 kilograms and 0.08335 kilograms of “ice” that Lucio sold
        to an undercover officer and a confidential source in two separate
        controlled transactions;
      • 0.619 kilograms of meth, 1.27 kilograms of cocaine, and 1.63466
        kilograms of marijuana seized from Lucio’s home;
      • 0.6237 kilograms of marijuana seized from a vehicle;
      • 24 kilograms of meth involved in a transaction with an unknown
        person;
      • and 2.83 kilograms of “ice,” an amount derived by converting
        $18,368 seized from Lucio and Cantu to the amount of meth the
        money would buy, using Lucio’s stated price of $6,500 per kilo-
        gram.
          The PSR converted the amounts of the various drug types into a
   converted drug weight equivalent, pursuant to the Guidelines, to reach a
   single base offense level of 38 and a total offense level of 41 after
   enhancements and reductions. That total, paired with a criminal history
   category of III, resulted in a recommended Guidelines range of 360 to 480
   months.
          Lucio made two objections to the PSR relevant to this appeal. First,
   he objected to attributing twenty-four kilograms of meth to him based on the
   text conversation. The cryptic conversation, he contended, did not suggest
   the type or quantity of drugs involved (or even whether drugs were involved
   at all) and therefore the PSR’s calculations were “bald speculation.” Second,
   he asserted that the Government had no basis to conclude that the $18,368
   in seized cash represented proceeds from the sale of “ice.” Lucio moved for
   a below-Guidelines sentence. The Government countered that Wilson’s


   GUIDELINES MANUAL § 2D1.1, cmt. n.8 (U.S. SENT’G COMM’N 2018). One gram of
   methamphetamine is equivalent to two kilograms of converted drug weight while one gram
   of methamphetamine “ice” equates to twenty kilograms of converted drug weight.




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                                     No. 19-11252


   statements supported both the officer’s interpretation of the texts as a meth
   deal and the conclusion that the cash was the proceeds of meth trafficking. It
   also pointed to an addendum to the PSR, which included Wilson’s
   statements about Lucio’s drug dealing. Finally, it referenced a Drug
   Enforcement Administration report containing an agent’s parsing of the text
   conversation. Interpreting the “24 or 25” and “food” references, the agent
   explained he
          believe[d] that [the unidentified person] [wa]s telling [Lucio]
          that the term food [wa]s utilized to describe methamphetamine
          and that the paper [wa]s a term utilized to describe currency.
          [The unidentified person] [wa]s telling [Lucio] what time
          he/she should deliver 24 or 25 kilograms of methamphetamine
          and [wa]s inquiring if [Lucio] has currency on hand.
          At sentencing, the district court adopted the PSR’s fact findings,
   overruling Lucio’s objections. Nonetheless, the court granted a downward
   variance. The court disagreed with the Guidelines’ disparate treatment of
   “ice” relative to “plain” meth, finding these differences “arbitrary and
   almost always productive of sentences greater than necessary.” The court
   thus treated all the meth involved as “plain,” resulting in a much lower
   converted drug weight of 55,474.25 kilograms and correspondingly lower
   base and total offense levels of 36 and 39, respectively. Lucio’s new
   Guidelines range was 324 to 405 months. The court imposed a sentence of
   324 months’ imprisonment, the low end of the range.
          Lucio timely appealed. The only issue presented is whether the
   district court erred in calculating the drug quantity attributable to Lucio.
                                         II
          The district court’s calculation of drug quantity is a factual
   determination we review for clear error. United States v. Arayatanon, 980
   F.3d 444, 451 (5th Cir. 2020) (citing United States v. Betancourt, 422 F.3d




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                                     No. 19-11252


   240, 246 (5th Cir. 2005)). As a fact finding, the calculation is “entitled to
   considerable deference” and will not be reversed “as long as it is plausible in
   light of the record as a whole.” United States v. Koss, 812 F.3d 460, 466 (5th
   Cir. 2016) (cleaned up); see also United States v. Kearby, 943 F.3d 969, 974
   (5th Cir. 2019) (“[W]e will not set [a drug quantity calculation] aside unless
   it was implausible in light of the whole record.”).
                                         III
          Lucio challenges two distinct findings in the district court’s drug
   quantity calculation: (1) that he trafficked twenty-four kilograms of meth on
   the occasion described in the text messages, and (2) that the seized cash
   derived from the sale of 2.83 kilograms of “ice.” The district court adopted
   these findings from the PSR, relying on the PSR itself, the addendum, and
   supporting documents. Lucio argues those facts were insufficiently reliable
   for sentencing purposes.
          “Generally, a PSR bears sufficient indicia of reliability to be
   considered as evidence by the sentencing judge in making factual
   determinations.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)
   (cleaned up). Yet “mere inclusion in a PSR” does not ipso facto validate facts
   that “lack[] an adequate evidentiary basis.” Id. at n.2. That is, facts in a PSR
   still must bear “sufficient indicia of reliability” for the district court to
   consider them at sentencing. United States v. Zuniga, 720 F.3d 587, 591 (5th
   Cir. 2013). For instance, a PSR is reliable when “based on the results of a
   police investigation, especially where the offense report is detailed and
   includes information gathered from interviews with the victim and any other
   witnesses.” United States v. Fields, 932 F.3d 316, 320 (5th Cir. 2019) (cleaned
   up); see also United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014) (PSR
   supported by police reports was reliable). Similar reliability may come from
   a lab report, United States v. Dinh, 920 F.3d 307, 313 (5th Cir. 2019), an




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                                     No. 19-11252


   independently-corroborated account by a co-conspirator, Zuniga, 720 F.3d at
   592, or a defendant’s own post-arrest, Mirandized admission, United States
   v. Barfield, 941 F.3d 757, 763–64 (5th Cir. 2019). “Even uncorroborated
   hearsay evidence may be sufficiently reliable,” under some circumstances.
   United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (uncorroborated
   portions of testimony were sufficiently reliable when other portions were
   corroborated and witness was subject to cross-examination); see also Kearby,
   943 F.3d at 974 (citation omitted) (“If uncorroborated hearsay is sufficiently
   reliable, a district court may rely on it in making sentencing findings.”). Even
   so, “bald, conclusionary statements in a PSR are not sufficiently reliable.”
   Zuniga, 720 F.3d at 591 (cleaned up). And “patently incorrect” statements
   in a PSR “cannot form the basis of a drug-quantity estimate.” United States
   v. Gentry, 941 F.3d 767, 788 (5th Cir. 2019) (discounting statements that
   attributed drug quantities delivered while defendant was incarcerated).
          With that background in mind, we address in turn the two findings
   Lucio contests on appeal.
                                         A
          First, Lucio contends the text messages fail to prove that the
   transaction was drug-related at all, let alone that “food” referred to meth or
   that “24 or 25” referred to kilograms. Even assuming the subject was drugs,
   Lucio claims the drugs were not necessarily meth: the “food” on offer at
   McDonald’s that day might instead have been cocaine or marijuana. As Lucio
   points out, “[l]aw enforcement found sizeable quantities of cocaine and
   marijuana in [his] home the day after this mystery transaction took place.”
   Further, the texts did not specify the unit of weight, and Lucio argues the
   record shows he trafficked only in small quantities. Finally, officers searched
   his home one day after the “24 or 25”-unit purchase but found only 619
   grams of meth.




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                                      No. 19-11252


          The Government responds that the record as a whole gives “ample
   reasons” to interpret the text messages as referring to kilograms of meth. It
   points out that the “coded words” in the text messages “disguise that they
   are discussing a drug transaction” and that both the “urgency” of the
   messages and the unidentified person’s follow-up texts are common features
   in drug-related communications. Moreover, the record shows not only that
   Lucio was a meth dealer, but also that he trafficked in kilogram quantities.
   While Lucio had sold smaller amounts of meth in controlled transactions, he
   had also named a price for a kilogram of “ice.” And Wilson stated that he
   had witnessed Lucio “engage in multiple kilogram-quantity transactions of
   methamphetamine” and also that Lucio kept forty-eight kilograms of the
   narcotic in a relative’s shed. Taken together, the Government maintains,
   these facts allow the conclusion that the texts referred to a twenty-four- or
   twenty-five-kilogram meth transaction.
          Giving considerable deference to the district court’s fact finding—as
   we must—we reject Lucio’s argument that its drug quantity calculation was
   “implausible in light of the whole record.” Kearby, 943 F.3d at 974. Three
   facts in particular support attributing to Lucio twenty-four kilograms of meth
   from the text transaction. First, Lucio was a meth dealer: he pleaded guilty of
   a meth distribution conspiracy and was directly observed by officers selling
   meth during controlled buys. Lucio himself quoted the price for a kilogram
   of “ice.” Second, Lucio’s co-conspirator, Wilson, stated that Lucio bought
   and sold meth in kilogram quantities on multiple occasions and, moreover,
   had stored in a shed nearly double the amount of meth involved in the text
   transaction. See id. at 974, n.3 (“[T]he court can consider statements of
   coconspirators . . . in calculating drug quantity.” (citing United States v. Rico,
   864 F.3d 381, 386 (5th Cir. 2017); United States v. Cantu-Ramirez, 669 F.3d
   619, 629 (5th Cir. 2012); Alford, 142 F.3d at 832)). Third, the agent who
   reviewed Lucio’s text messages applied his own training and experience to




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                                     No. 19-11252


   interpret the exchange in light of Lucio’s criminal history. See United States
   v. King, 773 F.3d 48, 53 (5th Cir. 2014) (PSR sufficiently reliable when
   probation officer “cited several investigative methods used” to prepare it);
   United States v. Quintanar, 777 F. App’x 706, 709 (5th Cir. 2019) (PSR drawn
   from police reports deemed reliable). Given this evidence, the district court
   could have plausibly concluded that the “food” in the texts referred to meth
   (and not cocaine, marijuana, or cheeseburgers), and that the “24 or 25”
   referred to kilograms (and not grams or ounces or pounds).
          It is true, as Lucio points out, that the supporting evidence here is
   somewhat weaker than in other cases where we have upheld a district court’s
   fact finding at sentencing. We have affirmed a district court’s reliance on
   statements by confidential informants, for instance, when officers testified
   that confidential informants were reliable witnesses and corroborated their
   statements. United States v. Young, 981 F.2d 180, 187 (5th Cir. 1992).
   Nonetheless, we conclude the evidence here was sufficiently reliable. We
   have explained that a witness’s partially corroborated testimony satisfied the
   “sufficient indicia of reliability” standard despite “[t]he fact that portions of
   [his] testimony [we]re uncorroborated.” Gaytan, 74 F.3d at 558. Thus, the
   district court reasonably relied on Wilson’s partially corroborated statements
   about the details of Lucio’s meth-dealing. And our deference to a district
   court is such that its determinations will stand even if supported by
   “somewhat imprecise” statements of a co-conspirator who testified as to
   “estimates rather than exact figures” of drug quantity. Alford, 142 F.3d at
   832; see also Kearby, 943 F.3d at 974 (cleaned up) (“A district court may
   consider estimates of the quantity of drugs for sentencing purposes.”).
          Moreover, our precedent permits a district court to use reasonable
   extrapolation in assessing attributable drug quantities. See Kearby, 943 F.3d
   at 975, n.5 (discussing “extrapolation” approach in Betancourt, 422 F.3d at
   246–48); see also, e.g., Gentry, 941 F.3d at 788 (“A district court ‘may



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                                    No. 19-11252


   extrapolate the quantity [of drugs] from any information that has sufficient
   indicia of reliability to support its probable accuracy.’” (quoting Dinh, 920
   F.3d at 313)). For instance, in Betancourt, the defendant supplied cocaine to
   a dozen dealers in addition to an individual named Esparza, who later became
   a government witness. 422 F.3d at 243–44. Betancourt’s PSR calculated drug
   quantity by estimating the cocaine sold to Esparza and multiplying it by
   twelve. Id. at 246. Betancourt argued that the quantity was too high because
   the record showed he interacted with Esparza more than any of the others.
   We declined to reverse the district court’s drug quantity finding: “While we
   acknowledge[d] that the evidence did show that Betancourt had more contact
   with Esparza than with the others, such evidence [wa]s not a sufficient basis
   for this Court to reverse the determination below in light of the ‘wide
   latitude’ we give the district court in our review for clear error.” Id. at 248
   (quoting United States v. Cothran, 302 F.3d 279, 287 (5th Cir. 2002)); see also
   Arayatanon, 980 F.3d at 451–52 (holding that “the drug-quantity
   determination in the PSR is sufficiently reliable even if based on a
   coconspirator’s ‘imprecise’ testimony” (quoting Alford, 142 F.3d at 832)).
          Finally, Lucio has not presented any evidence to the contrary. “A
   district court may adopt facts contained in the PSR without further inquiry if
   the facts have an adequate evidentiary basis and the defendant does not
   present rebuttal evidence.” Alford, 142 F.3d at 831–32 (citing United States
   v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994)). Lucio adduced no evidence
   to contextualize the text transaction, to counter Wilson’s statements, or to
   rebut anything else in the PSR. “When faced with facts contained in the PSR
   that are supported by an adequate evidentiary basis with sufficient indicia of
   reliability, a defendant must offer rebuttal evidence demonstrating that those
   facts are materially untrue, inaccurate or unreliable.” Gentry, 941 F.3d at 791
   (cleaned up). Lucio failed to meet that burden.




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                                   No. 19-11252


          In sum, we conclude that the district court did not clearly err in
   attributing to Lucio twenty-four kilograms of meth from the text transaction.
                                        B
          Second, Lucio contests the district court’s conversion of cash seized
   from Lucio’s residence and from Cantu into a corresponding amount of
   meth. Lucio correctly concedes that the district court was permitted to
   convert the money into a corresponding quantity of drugs. United States v.
   Haines, 803 F.3d 713, 743 (5th Cir. 2015) (“The district court did not err in
   converting the cash into a drug quantity.”). Nor does he contest on appeal
   the conclusion that the $18,368 represented drug proceeds. Rather, Lucio
   maintains it was error to determine it was the proceeds of the sale of meth
   instead of another narcotic. He notes that officers discovered not only meth
   in his house, but also cocaine and marijuana; therefore, the cash could have
   come from selling those drugs. In response, the Government reiterates that
   the evidence shows Lucio engaged in meth trafficking. Further, it argues he
   “would be hard pressed to explain the source of approximately $18,000 in
   cash at a time when he had been out of (legitimate) work for approximately
   two years.”
         We see no clear error in the district court’s finding. That is, the
   court’s conversion of the cash into the equivalent amount of meth was not
   “[im]plausible in light of the record as a whole.” Koss, 812 F.3d at 466
   (citation omitted). Although the record reflects that cocaine and marijuana
   were also seized from Lucio’s residence, Lucio was undisputedly a meth
   dealer. Even assuming he dealt other drugs, nothing suggests he sold enough
   to amass over $18,000. More to the point, as discussed, the record plausibly
   supports the inference that Lucio regularly dealt in kilogram quantities of
   meth—quantities easily sufficient to account for the amount of cash seized.
   Considering the record as a whole, the district court did not clearly err in




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                                   No. 19-11252


   concluding it was more likely than not that these undisputed drug proceeds
   came from meth sales. See United States v. Johnston, 127 F.3d 380, 403 (5th
   Cir. 1997) (upholding conversion of $90,000 into equivalent quantity of
   cocaine, despite the fact that defendants also trafficked marijuana, because
   there was no evidence of correspondingly large sales of marijuana and
   “considerable evidence” of sales of large amounts of cocaine).
                                       IV
         The district court did not clearly err in calculating the drug quantity
   attributable to Lucio. We therefore AFFIRM Lucio’s sentence.




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