USA v. David Hardy

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USA v. David Hardy

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Case: 09-40700

Document: 00511215761

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40700 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A V I D MARK HARDY, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:07-CR-76-4

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* D a v id Mark Hardy challenges both his jury-trial conviction of conspiracy t o possess with intent to manufacture or distribute 500 grams or more of a m ix tu r e or substance containing a detectable amount of methamphetamine and h is sentence of 360 months' imprisonment. Hardy contends: the evidence was in s u ffic ie n t to establish that the substance he distributed was

m e t h a m p h e t a m in e and not a counterfeit substance; the district court clearly e r r e d when it determined that the drug quantity involved in the offense was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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a p p r o x im a t e ly 10 kilograms; the district court clearly erred by finding that he u s e d a minor during the commission of the offense; and, his sentence was s u b s t a n t iv e ly unreasonable. H a r d y properly preserved his challenge to the sufficiency of the evidence. See United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995). A c c o r d in g ly , this challenge is reviewed de novo, but "[d]ue to the jury verdict of g u ilt , the evidence is viewed in the light most favorable to the government, w h ic h receives all reasonable inferences and credibility choices". United States v . Fernandez, 559 F.3d 303, 313 (5th Cir. 2009). H a r d y contends that the drug he distributed was not methamphetamine b e c a u s e , during his July 2006 traffic stop, police found him in possession of an in fo r m a l list of equipment and ingredients that could be used in connection with m a k in g a substance similar in appearance to methamphetamine, but that was n o t a controlled substance, and there was no evidence that Hardy had the items o n the list or that he actually manufactured either methamphetamine or a n o n m e t h a m p h e t a m in e substance. Regardless of whether Hardy manufactured m e t h a m p h e t a m in e , his co-conspirators' testimony showed that Hardy intended t o distribute it, and that he did distribute methamphetamine obtained from o t h e r suppliers. The evidence, therefore, does not support Hardy's assertion t h a t the conspiracy involved only a counterfeit substance in a sham transaction. Cf. United States v. Murray, 527 F.2d 401, 409 (5th Cir. 1976) (holding evidence o f drug conspiracy insufficient where it only showed defendant intentionally sold la c to s e as heroin). Hardy next challenges his within-guidelines sentence. Although postB o o k e r , the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the d is t r ic t court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2 0 0 7 ). In that respect, its application of the guidelines is reviewed de novo; its 2

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fa c t u a l findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 5 1 7 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5 t h Cir. 2005). The district court found Hardy responsible for 9,475.9 grams of m e t h a m p h e t a m in e and assigned Hardy a base offense level of 36, which applies w h e r e the amount of methamphetamine attributable to a defendant is at least 5 kilograms but less than 15 kilograms. U.S.S.G. § 2D1.1(c)(2). Relying on the s a m e facts with which he challenged his conviction, Hardy contends that, a lt h o u g h the proof may have shown he distributed about ten kilograms of some s u b s t a n c e , there was insufficient proof, in the absence of laboratory testing, that t h e substance he distributed was methamphetamine. The testimony of Hardy's c o c o n s p ir a t o r s , who both used and distributed the methamphetamine they o b ta in e d from Hardy, was sufficient to establish that Hardy distributed at least fiv e , but less than 15 , kilograms of methamphetamine. Accordingly, the district c o u r t's sentencing determination was not clearly erroneous. Section 3B1.4 of the Sentencing Guidelines provides for a two-level a d ju s tm e n t "[i]f the defendant used or attempted to use a person less than e ig h t e e n years of age to commit the offense or assist in avoiding detection of, or a p p r e h e n s io n for, the offense". The § 3B1.4 adjustment is not applicable if a m in o r is merely "present" during the commission of the offense. See United S ta te s v. Molina, 469 F.3d 408, 414-15 (5th Cir. 2006). Two witnesses' testimony esta b lis h e d that Hardy cultivated a relationship with 16-year-old J.M., providing h e r with free methamphetamine. J.M. subsequently brought one of her friends, T r e y Harvey, to Hardy's home to purchase methamphetamine. Harvey

p u r c h a s e d methamphetamine, which Hardy handed to J.M. Harvey eventually b e c a m e a user and distributor of Hardy's methamphetamine. In the light of t h e s e facts, the district court's sentencing determination was not clearly erron eou s.

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B e c a u s e Hardy did not object to the substantive reasonableness of his sentence in the district court, review is limited to plain error. United States v. P e ltie r , 505 F.3d 389, 391-92 (5th Cir. 2007). To establish reversible plain error, H a r d y must show the district court committed a clear or obvious error that a ffe c t e d his substantial rights; even then, we have discretion whether to correct s u c h error and, generally, will do so only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. E.g., United States v.

B a k e r , 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). H a r d y 's challenge to the substantive reasonableness of his sentence is u n a v a ilin g . The district court considered and implicitly rejected Hardy's

c o n t e n t io n s , stated it had carefully considered his criminal history, and d e t e r m in e d that a sentence within the guidelines range was appropriate, based o n the 18 U.S.C. § 3553(a) sentencing factors. Hardy's claims regarding his p e r s o n a l history and characteristics are insufficient to rebut the presumption of r e a s o n a b le n e s s . See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th C ir .), cert. denied, 129 S. Ct. 624 (2008). He has not demonstrated that the d istr ic t court's imposition of a sentence within the advisory guidelines range was e r r o r , plain or otherwise. See Gall, 552 U.S. at 51. AFFIRMED.

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