`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`No. 22-51112
`Summary Calendar
`____________
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`October 17, 2023
`
`Lyle W. Cayce
`Clerk
`
`United States of America,
`
`
`
`
`
`Alejandro Diaz,
`
`
`versus
`
`Plaintiff—Appellee,
`
`Defendant—Appellant.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 7:22-CR-103-1
`______________________________
`
`
`Before Davis, Willett, and Oldham, Circuit Judges.
`Per Curiam:*
`
`Alejandro Diaz appeals the 151-month within-guidelines sentence
`imposed after his guilty plea conviction for possession with intent to
`distribute 50 grams or more of actual methamphetamine. He argues the
`district court clearly erred in finding that he was responsible for at least 500
`grams of actual methamphetamine in determining his base offense level.
`
`_____________________
`
`* This opinion is not designated for publication. See 5th Cir. R. 47.5.
`
`
`
`Case: 22-51112 Document: 00516933395 Page: 2 Date Filed: 10/17/2023
`
`No. 22-51112
`
`Because Diaz preserved his challenge to the district court’s drug
`quantity calculation, we review the district court’s “factual findings for clear
`error.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A factual
`finding is not clearly erroneous if it is plausible in light of the record as a
`whole.” United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013) (internal
`quotation marks and citation omitted).
`
`In determining the drug quantity, the district court reasonably relied
`on information in the presentence report (PSR), including the police officers’
`investigation, surveillance, controlled purchases from Diaz, and Diaz’s text
`and What’s App messages. See United States v. Lucio, 985 F.3d 482, 485-88
`(5th Cir. 2021). Further, the Government presented Diaz’s What’s App
`messages, in which he discussed purchasing and distributing various
`quantities of methamphetamine with at least three individuals. Diaz also
`admitted at the sentencing hearing that he had sold 300 to 400 grams of actual
`methamphetamine. The district court found incredible Diaz’s testimony
`that he did not sell 500 grams of actual methamphetamine, and we defer to
`that finding. See United States v. Perez, 217 F.3d 323, 332 (5th Cir. 2000).
`Other than his testimony, Diaz did not present any additional evidence to
`rebut the drug quantity information in the PSR. The district court’s finding
`that Diaz was accountable for at least 500 grams of actual methamphetamine
`was plausible in view of the record as a whole and, therefore, was not clearly
`erroneous. See Alaniz, 726 F.3d at 618.
`
`AFFIRMED.
`
`
`
`2
`
`
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