     Case: 16-10053       Document: 00513712411         Page: 1     Date Filed: 10/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                     No. 16-10053                                FILED
                                   Summary Calendar                       October 11, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MATTHEW RUTLEDGE,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 4:15-CR-151-20


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Matthew Rutledge pleaded guilty to conspiracy to possess, with the
intent     to   distribute,   50   grams      or   more    of   a   mixture         containing
methamphetamine, in violation of 21 U.S.C. §§ 841, 846. He was sentenced,
inter alia, to 324-months imprisonment, at the bottom of the advisory
Sentencing Guidelines range. Rutledge challenges the court’s finding on the
amount of methamphetamine for which he was held responsible, asserting the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-10053

presentence investigation report (PSR) was not sufficiently specific to be
reliable.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district 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, 48–51 (2007). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error.      E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The court’s drug-quantity determination is reviewed for clear error, with
the finding to be upheld as long as it is “plausible in light of the record as a
whole”. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal
quotation marks and citations omitted).          A drug-quantity finding for
sentencing purposes must be based on reliable evidence, such as a PSR. E.g.,
United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). For the reasons that
follow, the drug-quantity finding was not clearly erroneous.
      The only evidence Rutledge submits in connection with his objections to
the drug-quantity determination neither contradicts the information in the
PSR nor shows it unreliable. See United States v. Harris, 702 F.3d 226, 230
(5th Cir. 2012) (stating defendant has the burden of presenting rebuttal
evidence demonstrating information in the PSR is unreliable).           Rutledge
presented a letter from a co-defendant, providing that his statements to the
authorities did not implicate Rutledge in the conspiracy. In addition to those
statements, however, the PSR also relied on information provided by numerous
other co-conspirators. Rutledge’s contentions against the reliability of the PSR
are conclusory and unsupported.



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                                 No. 16-10053

      Additionally, to the extent Rutledge asserts the court failed to comply
with Federal Rule of Criminal Procedure 32(i)(3)(B) (district court to resolve
and rule on disputed portions of PSR), his contention is unsupported by the
record. At sentencing, the court explicitly addressed Rutledge’s objections to
the drug quantity and overruled them, finding there was no evidence
detracting from the PSR’s reliability.
      AFFIRMED.




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