United States v. Vanwinkle

*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this opinion should not be published and is not precedent except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
November 7, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50411
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DAVID VANWINKLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-161-ALL
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
John David Vanwinkle (Vanwinkle) appeals his sentence for
distribution of pseudoephedrine with intent to manufacture
methamphetamine, a violation of 21 U.S.C. §§ 843(a)(7) and (d)(2).
Vanwinkle argues that the district court erred in applying the
U.S.S.G. § 2D1.12 cross reference, thereby holding him accountable

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under § 1B1.3 (Relevant Conduct) for the manufacturing of
methamphetamine performed by others.
Specifically, Vanwinkle contends that there was not
sufficient evidence presented to prove that he agreed to jointly
undertake the activity of manufacturing methamphetamine or that it
was reasonably foreseeable to him that the pseudoephedrine he sold
to the informant would be used to manufacture methamphetamine.
Vanwinkle failed to present rebuttal evidence at the
sentencing hearing. The facts in the PSR and testimony presented
at the hearing have an adequate evidentiary basis to support the
district court’s finding. United States v. Puig-Infante, 19 F.3d
929, 942 (5th Cir. 1994). Therefore, the district court did not
clearly err in holding Vanwinkle accountable under the relevant
conduct provision in the Guidelines for the manufacturing of
methamphetamine performed by others. United States v. Cooper, 274
F.3d 230, 238 (5th Cir. 2001).
AFFIRMED.

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