Case: 16-11223 Document: 00514178814 Page: 1 Date Filed: 10/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11223
Fifth Circuit
FILED
Summary Calendar October 2, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BOBBY FRIE, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-21-13
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Bobby Frie, Jr., pleaded guilty to conspiracy to possess with intent to
distribute 50 grams or more of methamphetamine and was sentenced below
the advisory guidelines range to 340 months of imprisonment and a five-year
term of supervised release. On appeal, Frie challenges the drug quantity
attributed to him in the presentence report and the application of the two-level
U.S.S.G. § 2D1.1(b)(5) importation enhancement. He correctly concedes that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-11223
the latter argument is foreclosed under our case law, because the Government
is under no obligation to demonstrate that Frie knew or should have foreseen
that the methamphetamine was imported. See United States v. Foulks, 747
F.3d 914, 914-15 (5th Cir. 2014); United States v. Serfass, 684 F.3d 548, 552
(5th Cir. 2012).
In determining whether the district court arrived at an appropriate
sentence, we first consider, relevant here, whether the district court committed
any significant procedural error “such as failing to calculate (or improperly
calculating) the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). The district court’s determination of drug quantity for purposes of
sentencing is a factual finding that is generally reviewed for clear error,
meaning that it will be upheld unless it is not plausible in light of the entire
record. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).
Frie contends that the district court erred by accepting the information
in the presentence report regarding the drug quantity attributable to him, as
the information was not sufficient to support the stated quantity and the
information lacked sufficient indicia of reliability. However, the Government
presented testimony at sentencing to corroborate the drug quantities listed in
the presentence report, which the district court found credible.
The only rebuttal evidence Frie offered was the result of a polygraph test
which indicated that he was truthful when denying the drug quantities
attributed to him. The district court did not find this evidence to be reliable.
Polygraph evidence is not without controversy. See United States v. Scheffer,
523 U.S. 303, 309 (1998) (“[T]here is simply no consensus that polygraph
evidence is reliable.”). Frie’s polygraph report in particular lacks information
which would indicate its reliability. The report provides no information as to
the polygraph operator’s qualifications or credentials, other than stating the
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No. 16-11223
operator’s Texas licensure number, nor does it include any specific explanation
as to the methods used by the examiner or how those methods were applied to
obtain the result. Despite having the opportunity to do so, Frie presented no
live testimony or affidavits which would fill in these gaps and demonstrate the
report’s reliability.
As the district court’s factual finding as to drug quantity was plausible
in light of the record as a whole, Frie has not demonstrated clear error. See
Alaniz, 726 F.3d at 618.
AFFIRMED.
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