Case: 09-40700     Document: 00511215761          Page: 1    Date Filed: 08/26/2010




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

                                                 FILED
                                                                           August 26, 2010
                                     No. 09-40700
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID MARK HARDY,

                                                   Defendant-Appellant


                     Appeal from the United States District Court
                          for the Eastern District of Texas
                               USDC No. 4:07-CR-76-4


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        David Mark Hardy challenges both his jury-trial conviction of conspiracy
to possess with intent to manufacture or distribute 500 grams or more of a
mixture or substance containing a detectable amount of methamphetamine and
his sentence of 360 months’ imprisonment. Hardy contends: the evidence was
insufficient    to    establish     that    the    substance       he    distributed      was
methamphetamine and not a counterfeit substance; the district court clearly
erred 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40700     Document: 00511215761 Page: 2       Date Filed: 08/26/2010
                                  No. 09-40700

approximately 10 kilograms; the district court clearly erred by finding that he
used a minor during the commission of the offense; and, his sentence was
substantively unreasonable.
      Hardy properly preserved his challenge to the sufficiency of the evidence.
See United States v. Resio-Trejo, 

, 910 n.6 (5th Cir. 1995).
Accordingly, this challenge is reviewed de novo, but “[d]ue to the jury verdict of
guilt, the evidence is viewed in the light most favorable to the government,
which receives all reasonable inferences and credibility choices”. United States
v. Fernandez, 

, 313 (5th Cir. 2009).
      Hardy contends that the drug he distributed was not methamphetamine
because, during his July 2006 traffic stop, police found him in possession of an
informal list of equipment and ingredients that could be used in connection with
making a substance similar in appearance to methamphetamine, but that was
not a controlled substance, and there was no evidence that Hardy had the items
on the list or that he actually manufactured either methamphetamine or a
nonmethamphetamine substance. Regardless of whether Hardy manufactured
methamphetamine, his co-conspirators’ testimony showed that Hardy intended
to distribute it, and that he did distribute methamphetamine obtained from
other suppliers. The evidence, therefore, does not support Hardy’s assertion
that the conspiracy involved only a counterfeit substance in a sham transaction.
Cf. United States v. Murray, 

, 409 (5th Cir. 1976) (holding evidence
of drug conspiracy insufficient where it only showed defendant intentionally sold
lactose as heroin).
      Hardy next challenges his within-guidelines sentence. Although post-
Booker, the Sentencing Guidelines are advisory only, and 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, 

, 51
(2007). In that respect, its application of the guidelines is reviewed de novo; its

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                                 No. 09-40700

factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,

, 764 (5th Cir. 2008); United States v. Villegas, 

, 359
(5th Cir. 2005).
      The district court found Hardy responsible for 9,475.9 grams of
methamphetamine and assigned Hardy a base offense level of 36, which applies
where 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
same facts with which he challenged his conviction, Hardy contends that,
although the proof may have shown he distributed about ten kilograms of some
substance, there was insufficient proof, in the absence of laboratory testing, that
the substance he distributed was methamphetamine. The testimony of Hardy’s
coconspirators, who both used and distributed the methamphetamine they
obtained from Hardy, was sufficient to establish that Hardy distributed at least
five, but less than 15 , kilograms of methamphetamine. Accordingly, the district
court’s sentencing determination was not clearly erroneous.
      Section 3B1.4 of the Sentencing Guidelines provides for a two-level
adjustment “[i]f the defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist in avoiding detection of, or
apprehension for, the offense”. The § 3B1.4 adjustment is not applicable if a
minor is merely “present” during the commission of the offense. See United
States v. Molina, 

, 414-15 (5th Cir. 2006). Two witnesses’ testimony
established that Hardy cultivated a relationship with 16-year-old J.M., providing
her with free methamphetamine. J.M. subsequently brought one of her friends,
Trey Harvey, to Hardy’s home to purchase methamphetamine.                  Harvey
purchased methamphetamine, which Hardy handed to J.M. Harvey eventually
became a user and distributor of Hardy’s methamphetamine. In the light of
these facts, the district court’s sentencing determination was not clearly
erroneous.



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                                 No. 09-40700

      Because Hardy did not object to the substantive reasonableness of his
sentence in the district court, review is limited to plain error. United States v.
Peltier, 

, 391-92 (5th Cir. 2007). To establish reversible plain error,
Hardy must show the district court committed a clear or obvious error that
affected his substantial rights; even then, we have discretion whether to correct
such error and, generally, will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.    E.g., United States v.
Baker, 

, 332 (5th Cir. 2008), cert. denied, 

(2009).
      Hardy’s challenge to the substantive reasonableness of his sentence is
unavailing.   The district court considered and implicitly rejected Hardy’s
contentions, stated it had carefully considered his criminal history, and
determined that a sentence within the guidelines range was appropriate, based
on the 18 U.S.C. § 3553(a) sentencing factors. Hardy’s claims regarding his
personal history and characteristics are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 

, 565-66 (5th
Cir.), cert. denied, 

(2008). He has not demonstrated that the
district court’s imposition of a sentence within the advisory guidelines range was
error, plain or otherwise. See 

.
       AFFIRMED.




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