USA v. Clyde Retiz, No. 17-11235 (5th Cir. 2018)
Annotate this Case
Download PDF
Case: 17-11235 Document: 00514630474 Page: 1 Date Filed: 09/06/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-11235 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 6, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. CLYDE RETIZ, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-69-1 Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Clyde Retiz pleaded guilty to conspiracy to possess, with intent to distribute, a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 846. The district court overruled Retiz’ objection to the drug-quantity calculation in the presentence investigation report (PSR) and sentenced him within the Sentencing Guidelines advisory sentencing range to 140 months’ Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 17-11235 Document: 00514630474 Page: 2 Date Filed: 09/06/2018 No. 17-11235 imprisonment. As he did in district court, Retiz maintains the court erred when it determined the scale of his offense for the purpose of the drug-quantity calculation. Although post-Booker, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). 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). Accordingly, because the drug-quantity determination is a factual finding, it is reviewed only for clear error. United States v. Rodriguez-Lopez, 756 F.3d 422, 434–35 (5th Cir. 2014). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (internal quotation marks and citation omitted). The district court adopted the PSR and its recitation of Retiz’ drugrelated relevant conduct. This included, inter alia, his admission that he personally distributed one ounce of methamphetamine per week for a year and assisted his cousin in distributing an additional ounce per week for a year, in addition to possessing and distributing cocaine and marijuana on other occasions. On the basis of those undisputed facts, the court implicitly determined the limited amounts of drugs seized did not reflect the scale of Retiz’ conspiracy offense, and, therefore, approximated the drug-quantity for 2 Case: 17-11235 Document: 00514630474 Page: 3 Date Filed: 09/06/2018 No. 17-11235 sentencing purposes by aggregating the amounts reflected in the PSR. The court’s drug-quantity calculation was consistent with the record, the Guidelines, and our precedent. See U.S.S.G. §§ 2D1.1 cmt. n.5 (“Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”); 2D1.1 cmt. n.7 (“Where there are multiple transactions or multiple drug types, the quantities of drugs are to be added.”); Rhine, 583 F.3d at 885; United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Retiz fails to cite persuasive authority that aggregating the drug amounts was not required or reasonable. AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
