The opinion
Case: 15-11181 Document: 00513578819 Page: 1 Date Filed: 07/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-11181
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 5, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LESLIE MOSKOWITZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-151-16
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Leslie Moskowitz appeals the sentence imposed upon his conviction for
conspiracy to possess with intent to distribute methamphetamine. He asserts
that the district court erred in determining the amount of methamphetamine
attributable to him under the Sentencing Guidelines. Moskowitz argues that
he, at most, possessed 126 grams of methamphetamine rather than the 737.1
grams upon which his guidelines sentencing range was based. He argues that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11181
the presentence report (PSR) and the other evidence offered in support of the
quantity finding was wrong, and the only reliable evidence was his testimony
regarding the amount of methamphetamine that he possessed.
We review the district court’s determination of drug quantity for clear
error and will affirm the finding 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). A
district court may determine drug amounts for sentencing purposes provided
the finding is based upon reliable evidence, such as the PSR. United States v.
Alford, 142 F.3d 825, 832 (5th Cir. 1998). In arriving at a drug quantity, the
court may also rely upon information provided by codefendants and witnesses,
including uncorroborated hearsay, if the information has the minimum indicia
of reliability. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996); United
States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992).
Moskowitz has not established that the district court clearly erred in its
quantity finding. The description in the PSR of Moskowitz’s activities, which
was derived from statements by his codefendants, supported that he possessed
737.1 grams of methamphetamine or otherwise was responsible for a quantity
that qualified him for the base offense level applied by the district court. See
Gaytan, 74 F.3d at 558; Shipley, 963 F.2d at 59; U.S.S.G. § 2D1.1(c)(5). These
statements, as well as testimony presented at sentencing from Special Agent
Brian Finney and Moskowitz’s own acknowledgements in his proffer interview
with law enforcement agents, reflected that Moskowitz engaged in numerous,
multi-ounce transactions with members of a drug-trafficking organization and
that the quantity of methamphetamine involved in the exchanges totaled more
than 500 and less than 1,500 grams. See § 2D1.1(c)(5). Moskowitz failed to
rebut this evidence, and his assertion that his codefendants’ statements should
not be credited because they include hearsay is unavailing. See United States
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No. 15-11181
v. Harris, 702 F.3d 226, 230 (5th Cir. 2012); Gaytan, 74 F.3d at 558; Shipley,
963 F.2d at 59. The sole evidence that Moskowitz presented in response to the
PSR was his testimony at sentencing that he was accountable only for 126
grams of methamphetamine. However, the district court determined that this
testimony was not credible and credited the contrary evidence supporting that
Moskowitz was responsible for 737.1 grams of methamphetamine; we will not
disturb the district court’s credibility finding. See United States v. Sotelo, 97
F.3d 782, 799 (5th Cir. 1996).
Accordingly, the judgment of the district court is AFFIRMED.
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