United States v. Estes

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50998
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY HAYES ESTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-39-2
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Terry Hayes Estes pleaded guilty pursuant to a written plea
agreement to the manufacture of methamphetamine, and he was
sentenced to 235 months’ imprisonment, three years’ supervised
release, a $1,000 fine, and a $100 special assessment.
Estes argues on appeal that he was improperly sentenced
because the district court erred in calculating the amount of
methamphetamine involved. Estes’s arguments concern the amount

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No. 03-50998
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of methamphetamine contained in items seized at his home and at
the home of Robert Melton. However, the presentence report
(“PSR”), which was adopted by the district court, based Estes’s
sentence on evidence of Estes’s production of 3.18 kilograms of
methamphetamine during the prior seven months, rather than the
amount of methamphetamine seized at the two residences. Because
Estes has failed to brief the issue whether the use of the 3.18
kilograms in determining his sentence was accurate, the issue is
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Furthermore, to the extent that Estes does argue that he was
not responsible for the 3.18 kilograms of methamphetamine
attributed to him, the district court did not clearly err in
relying on information contained in the PSR because Estes did not
meet his burden of proving that the information was “materially
untrue, inaccurate or unreliable.” See U.S.S.G. § 1B1.3; United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); United States
v. Rogers, 1 F.3d 341, 344 (5th Cir. 1993).
AFFIRMED.

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