United States v. Ronnie Kearby


Case: 18-10874 Document: 00515213088 Page: 1 Date Filed: 11/25/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-10874 November 25, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee versus RONNIE KEARBY, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas Before OWEN, Chief Judge, JONES and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: Ronnie Kearby has had more than one brush with the law. His latest exploits led to a guilty plea of conspiracy to possess with intent to distribute methamphetamine (“meth”). The district court sentenced him to, among other things, 235 months. He appeals, challenging the procedural and substantive reasonableness of his sentence. We affirm. Case: 18-10874 Document: 00515213088 Page: 2 Date Filed: 11/25/2019 No. 18-10874 I. During May and June 2016, Kearby daily received between one and three ounces (28.35 and 85.05 grams, respectively) of meth from Nicole Her- rera, whose supplier was Pablo Morales, who had imported the drugs from Mexico. Kearby consumed some of the meth but mainly distributed it around Dallas-Fort Worth. He was arrested in late June 2016. Fifteen months later, he pleaded guilty (without a plea agreement) of conspiracy to possess with intent to distribute meth in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846. Section 2D1.1 of the U.S. Sentencing Guidelines (“U.S.S.G.”) established Kearby’s base offense level by reference to the quantity of drugs involved in his conduct. To calculate that quantity, the presentence investigation report (“PSR”) estimated (conservatively) that Kearby had purchased one ounce of meth per day. That estimate came from Herrera’s statement to investigators that she’d given Kearby one to three ounces per day. The PSR multiplied that quantity by sixty days—the period that Herrera said Kearby had participated in the conspiracy. All told, the PSR’s “conservative estimate” was 1,701 grams, yielding a base offense level of 32. Next, the PSR applied a two-level importation enhancement under U.S.S.G. § 2D1.1(b)(5) because the drugs had come from Mexico. It also rec- ommended a three-level reduction for acceptance of responsibility. The net offense level was 31, and because of Kearby’s lengthy past, the criminal history category was VI. The PSR thus recommended a guideline range of 188 to 235 months. Kearby objected to the PSR on three main grounds. 1 First, he contested 1 Kearby had a fourth objection that he doesn’t press on appeal, relating to the PSR’s 2 Case: 18-10874 Document: 00515213088 Page: 3 Date Filed: 11/25/2019 No. 18-10874 Herrera’s reliability in providing information for the drug-quantity estimate. He pointed out that Herrera had faked cooperation with the Drug Enforcement Administration and duped an agent into returning her cellphone, at which point she promptly deleted her text messages from after June 2016, which destroyed critical evidence. Kearby also said that he had participated in the conspiracy for less than the sixty days Herrera alleged. Next, Kearby objected to the importation enhancement. There was “no evidence,” he claimed, ...

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