Case: 21-50519 Document: 00516260672 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 21-50519 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Don Smiley,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:21-CR-2-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Don Smiley appeals the sentence imposed for his conviction of pos-
session with intent to distribute five grams or more of actual methampheta-
mine (“meth”). The district court assessed a base offense level of 32 under
U.S.S.G. § 2D1.1(c)(4) after finding that Smiley was responsible for no less
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-50519 Document: 00516260672 Page: 2 Date Filed: 03/30/2022
No. 21-50519
than 344 grams of actual meth, a total that included 6.5 grams that were
seized in a controlled buy. Smiley challenges the district court’s extrapola-
tion of the purity level of the 337.5 grams of unseized meth.
We review for clear error the district court’s finding regarding purity.
See United States v. Lucio, 985 F.3d 482, 485 (5th Cir.), cert. denied, 142 S. Ct.
177 (2021). Based on Smiley’s statements in his police interview, it was rea-
sonable for the court to infer that depending on availability, he interchangea-
bly obtained a comparable purity of meth from his two sources. See id. at 488;
United States v. Rodriguez, 666 F.3d 944, 947 (5th Cir. 2012). Additionally,
there is no evidence indicating that the purity level of the unseized meth actu-
ally was dissimilar to the 97% purity of the meth in the controlled buy. Based
on the record as a whole, it was plausible for the district court to find that the
disputed 337.5 grams of meth had a level of purity sufficient to support a base
offense level of 32 under § 2D1.1(c)(4). Thus, the finding was not clearly
erroneous. See Lucio, 985 F.3d at 485–88; Rodriguez, 666 F.3d at 947.
AFFIRMED.
2