from the United States District Court for the Northern
District of Texas
STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE
Dinh pleaded guilty to distributing a large volume of pills
containing Fentanyl analogues. Two crime laboratories tested
samples of the pills and reported that every pill tested
contained the analogues. At sentencing, the district court
used the total weight of all the pills as the attributable
drug quantity. On appeal, Dinh objects to the district
court's use of that drug quantity when calculating her
sentence. Because the district court did not err in using
that drug quantity, we AFFIRM.
pleaded guilty to being in the illegal opioid business and
she is serving a 151-month sentence in prison. As admitted in
a factual resume signed pursuant to her plea agreement, she
was caught possessing and selling large quantities of pills
on four separate occasions. The pills were advertised as
Hydrocodone and Oxycodone; however, lab reports from the
first three batches detected that they contained Fentanyl
first seizure, a bag containing 991 pills was found during an
inventory of Dinh's car after an arrest. Those pills were
sent to a Texas Department of Public Safety crime lab for
analysis. The lab tested a sample of 29 pills from that batch
and detected a Fentanyl analogue in every tested pill. The
lab report notes that the bag contained "991 white
oblong tablets," and states that "[t]he statistical
sampling plan used indicates a 95% confidence that at least
90% of the items will have the reported results." In the
second seizure, Dinh sold an undercover DEA agent 1, 001
pills. Those pills were sent to a DEA lab for analysis. The
lab tested 28 pills from that batch and detected a Fentanyl
analogue in every tested pill. As with the Texas DPS lab
report, the DEA lab report does not indicate any way in which
the pills were distinguishable from one another and states
that the sampling plan represents a 95% level of confidence
that at least 90% of the pills contain the analogue. In the
third seizure, Dinh sold an undercover DEA agent 506 pills.
Those pills were again sent to a DEA lab for analysis. The
lab again tested 28 pills from that batch and again detected
a Fentanyl analogue in every tested pill. The lab report
again does not indicate any way in which the pills were
distinguishable from one another and again states a 95% level
of confidence that at least 90% of the pills contain the
total, 2, 498 pills from three separate batches, with a net
weight of 838.9 grams, were sent to the labs. The labs tested
85 of those pills (28-29 from each batch) and detected
Fentanyl analogues in every single pill that was tested. The
lab reports then stated that based on those samplings there
was a 95% level of confidence that at least 90% of
all the pills contained Fentanyl analogues. None of the lab
reports go into depth on the chemical equations underlying
their results nor the mathematical models underlying their
ranges of statistical certainty.
on those lab reports, the Presentence Report (PSR) concluded
that the relevant drug quantity was the net weight of all the
pills submitted for testing-838.9 grams. Dinh objected to the
use of that quantity on the grounds that: (1) it violated Due
Process to test only a small sample of the pills; (2) it
violated Due Process not to ascertain the exact composition
of each pill; and (3) it violated the Confrontation Clause
not to be able to cross-examine the lab technicians. The
district court overruled those objections, and sentenced Dinh
to 151 months' imprisonment (the bottom end of a
Guidelines range of 151-188 months). Dinh filed a timely
notice of appeal, and we have jurisdiction under 18 U.S.C.
apply the clearly erroneous standard of review to the
district court's factual determination regarding the
quantity of drugs used to establish the base offense
level." United States v. Alaniz, 726 F.3d 586,
618 (5th Cir. 2013) (citing United States v.
Johnston, 127 F.3d 380, 403 (5th Cir. 1997)).
"Ultimately, the district court need only determine its
factual findings at sentencing by a preponderance of the
relevant and sufficiently reliable evidence."
Id. at 618-19 (citing United States v.
Betancourt, 422 F.3d 240, 247 (5th Cir. 2005)). "A
factual finding is not clearly erroneous as long as it is
plausible in light of the record read as a whole."
United States v. Sanders, 942 F.2d 894, 897 (5th
review the district court's interpretation and
application of the Sentencing Guidelines de
novo[.]" United States v. Rodriguez-Lopez,
756 F.3d 422, 434 (5th Cir. 2014) (citing United States
v. Miller, 607 F.3d 144, 147 (5th Cir. 2010)).
"[W]hen faced with a preserved constitutional challenge
to the Guidelines' application, our review is de
novo." United States v. Preciado-Delacruz,
801 F.3d 508, 511 (5th Cir. 2015).
appeal, Dinh argues that the district court's reliance on
the PSR's drug quantity was legal error for three
reasons: (1) it reflected the mixture weight of the pills
rather than just the controlled substance weight; (2) there
was no opportunity to confront the lab technicians; and (3)
the PSR did not provide an adequate evidentiary basis for