Date: Nov 4, 2026

Seizure Figures Alone Do Not Cap Sentencing Drug Quantities

Case: United States v. Dew, No. 25-30623
Court: United States Court of Appeals for the Fifth Circuit
Decision date: November 2, 2026
Disposition: Life sentence affirmed.

Precedential status: The per curiam opinion is not designated for publication under Fifth Circuit Rule 47.5. It principally applies existing law rather than announcing a new, generally binding rule.

1. Introduction

In United States v. Dew, the Fifth Circuit considered whether a plea agreement’s factual description of drugs actually seized limited the quantity that could later be attributed to the defendant at sentencing. The court held that it did not: neither the agreement nor the plea proceedings established a government commitment to cap the sentencing quantity at the amount seized from Thomas Dew.

Dew pleaded guilty to participating in a methamphetamine-distribution conspiracy operating primarily in Sabine Parish, Louisiana. Although the plea’s factual basis identified 440 grams of methamphetamine seized from him, the presentence investigation report attributed at least 10.88 kilograms to his conduct during the conspiracy. That larger quantity, together with sentencing enhancements and his criminal history, produced an advisory Guidelines recommendation of life imprisonment.

On appeal, Dew argued that the Government breached the plea agreement, that the sentencing court relied on unreliable testimony to calculate drug quantity, and that life imprisonment was substantively unreasonable. The Fifth Circuit rejected all three arguments. The decision illustrates the distinction between describing evidence supporting a guilty plea and negotiating a limitation on sentencing exposure.

2. Background and Procedural History

The investigation and plea agreement

Law enforcement conducted several controlled purchases from Dew using confidential informants. Dew and six others were subsequently charged in a multi-count indictment. One count alleged conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, implicating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

Under the written plea agreement, Dew agreed to plead guilty, and the Government agreed to dismiss his remaining two counts, refrain from prosecuting other offenses arising from the investigation, and move for a one-point acceptance-of-responsibility reduction. The agreement also contained a limited appeal waiver, reserved sentencing authority to the district court, and stated that it embodied the parties’ complete agreement.

The accompanying factual basis listed quantities seized from individual conspirators. Next to Dew’s name appeared “440 grams of methamphetamine.” At the plea hearing, the Government explained that this represented the amount actually seized. It also expressly warned that additional quantities, not included in the factual basis, would arise at sentencing through information supplied by two co-defendants.

The district court advised Dew that the offense carried a mandatory minimum of ten years and a maximum of life imprisonment, accepted his plea, and ordered preparation of a presentence investigation report.

The sentencing determination

The report attributed at least 10.88 kilograms of methamphetamine to Dew and assigned a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1). It applied enhancements for firearm possession, maintaining drug-distribution premises, and acting as an organizer or leader. After a three-level reduction for acceptance of responsibility, Dew’s total offense level was 43. Combined with criminal history category V, this yielded a Guidelines recommendation of life imprisonment.

Dew objected that only 440 grams should be considered. At sentencing, the Government presented testimony from two co-conspirators and an FBI agent. Defense counsel cross-examined each witness, but the court overruled the objection.

After hearing Dew’s apology and the parties’ arguments, the district court imposed life imprisonment. It accepted the Guidelines calculation but also explained that the statutory sentencing factors independently warranted the same sentence.

3. Summary of the Opinion

Issue	Review standard	Holding
Alleged breach of the plea agreement	Plain error, because Dew first raised breach on appeal	No clear or obvious breach: the Government had not promised a 440-gram cap.
Attribution of 10.88 kilograms	Clear error	The consistent co-conspirator testimony, supported by the FBI agent’s testimony, adequately supported the finding.
Substantive reasonableness of life imprisonment	Abuse of discretion	The within-Guidelines sentence was presumptively reasonable, and the district court adequately explained its individualized sentencing judgment.

The Fifth Circuit affirmed without deciding whether the plea agreement’s appeal waiver barred Dew’s claims.

4. Analysis

4.1. Precedents Cited and Their Influence

Plea agreements and unpreserved breach claims

United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017): The court cited this decision for applying plain-error review when a defendant does not raise an alleged plea-agreement breach in the district court. Dew’s sentencing objection to drug quantity did not preserve the distinct contention that the Government had broken its agreement.
Puckett v. United States, 556 U.S. 129, 135 (2009): This decision supplied the plain-error framework: an unwaived error must be clear or obvious and affect substantial rights before discretionary correction becomes available. The framework mattered because even an asserted breach of a plea agreement does not escape the consequences of failing to object. Dew’s claim failed at the clear-or-obvious-error stage, making further analysis unnecessary.
United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008): The court relied on this case for interpreting plea agreements through general contract-law principles. That directed the inquiry toward the Government’s actual commitments rather than Dew’s unilateral understanding of the factual basis.
United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014): This was the closest cited analogy on breach. The quoted agreement in that case contained neither a reference to drug quantity nor a promise not to advocate inclusion of relevant conduct. Here, although the factual basis listed seized quantities, the operative agreement similarly lacked a sentencing-quantity limitation or a restriction on presenting additional relevant-conduct evidence.

Drug-quantity findings and evidentiary reliability

United States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019): This case established clear-error review for factual findings such as drug quantity. Consequently, the appellate court’s task was not to calculate quantity afresh but to determine whether the sentencing court’s finding could stand on the record.
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005): The court cited this decision for the proposition that a factual finding is not clearly erroneous if plausible in light of the record as a whole. It supplied the deferential measure against which Dew’s reliability challenge was assessed.
United States v. Barry, 978 F.3d 214, 217–18 (5th Cir. 2020): This decision supported using drug-quantity estimates and approximating quantity when actual seizures do not reflect the offense’s scale. It directly answered the premise that documented seizures or transactions necessarily set the upper limit of sentencing accountability.
United States v. Kearby, 943 F.3d 969, 974 (5th Cir. 2019): This case supplied two important principles. Sentencing information must bear sufficient indications of reliability, and adequately supported facts in a presentence report may be adopted without further inquiry when the defendant presents no rebuttal evidence. It also recognized that somewhat imprecise co-conspirator statements may support drug-quantity calculations. The decision therefore linked permissible estimation with a continuing reliability requirement.
United States v. Rico, 864 F.3d 381, 386 (5th Cir. 2017): The court cited this case to support the use of co-conspirator statements as a sufficiently reliable basis for factual findings. Applied here, it defeated any categorical objection to the witnesses merely because they participated in the conspiracy.
United States v. Arayatanon, 980 F.3d 444, 451 (5th Cir. 2020): This decision reinforced that a presentence report may remain sufficiently reliable despite reliance on imprecise co-conspirator testimony, especially without competent rebuttal evidence. It supported affirmance because Dew neither supplied contrary evidence nor demonstrated that the testimony supporting the estimate was unreliable.

Sentence review and appeal waivers

United States v. Sifuentes, 945 F.3d 865, 868 (5th Cir. 2019): This case provided the abuse-of-discretion standard for reviewing substantive reasonableness. It framed the inquiry as whether the sentencing court exceeded its permissible judgment, not whether the appellate judges would have selected the same punishment.
United States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017) (per curiam): The court relied on this decision both for highly deferential review of sentencing judgments and for the presumption that a within-Guidelines sentence is reasonable. Those principles were central because life imprisonment was the correctly calculated advisory recommendation.
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (per curiam): This decision established that disagreement with the sentence’s propriety does not rebut the presumption of reasonableness. The court characterized Dew’s remaining objections as disagreement with the district court’s assessment, rather than proof of an unreasonable sentencing judgment.
United States v. Borino, 123 F.4th 233, 239 n.1 (5th Cir. 2024): This case supported resolving the merits without deciding the appeal waiver’s applicability. Because appeal waivers are not jurisdictional, the court could assume the claims were reviewable and reject them without construing the waiver.

4.2. Legal Reasoning

A. A description of seizures was not a sentencing promise

The breach claim depended on treating “440 grams” as an agreed ceiling on the conspiracy’s drug quantity. The court rejected that interpretation because the factual basis described amounts agents had seized, not the total amount Dew bought, sold, or otherwise handled during the conspiracy.

The distinction is substantive. A statement about recovered evidence does not necessarily represent a complete account of an ongoing distribution operation. Nor does it, without additional language, obligate the Government to limit its sentencing presentation to that evidence.

Several features of the agreement reinforced this conclusion:

It contained no promise establishing a total sentencing quantity.
It did not require a particular sentencing recommendation concerning quantity.
It did not prohibit evidence of additional relevant conduct.
It stated that the final Guidelines range could not be determined until the presentence report was completed.
It reserved the ultimate sentencing decision to the district court and identified the writing as the complete agreement.

The plea hearing also undermined Dew’s position. The Government expressly identified additional quantities that would arise at sentencing and referred to anticipated co-defendant accounts of the amounts distributed. Thus, the record did not merely lack a clear cap; it affirmatively contemplated a broader sentencing inquiry.

The court did not hold that plea-hearing statements can never matter. Rather, Dew failed to show either an incorporated promise or a clear governmental agreement to the asserted cap. On this record, there was no clear or obvious breach.

B. Sentencing quantity could exceed both the plea figure and documented seizures

The Guidelines permit consideration of relevant drug quantities beyond those specified in the count of conviction. Under U.S.S.G. § 2D1.1, comment note 5, referencing § 1B1.3(a)(2), a sentencing court may consider additional relevant conduct and must approximate quantity when seizures do not capture the offense’s scale.

Three figures must therefore be kept distinct:

440 grams: the amount identified as seized from Dew in the plea’s factual basis.
1.9 kilograms: the amount the presentence report attributed to conspiracy seizures through controlled buys and traffic stops, which Dew did not appear to contest on appeal.
10.88 kilograms: the broader quantity attributed to Dew based on the conspiracy evidence.

The appellate dispute concerned the evidentiary basis for moving to the third figure. The two co-conspirators consistently described distribution of one to two pounds per week. The FBI agent testified that this quantity fit the overall investigation. The court considered that combination sufficient to support the finding.

Dew argued that the estimate could not be tested and exceeded documented transactions. But exceeding documented transactions was not itself a defect: approximation exists precisely because recovered drugs may represent only part of the activity. The decisive question was reliability, not whether every transaction had been independently documented.

The absence of rebuttal evidence reinforced the Government’s showing. It did not eliminate the requirement for an adequate evidentiary foundation; the opinion identified consistent witness accounts and investigative support before emphasizing Dew’s failure to undermine them. The holding therefore does not make every co-conspirator estimate automatically sufficient.

The opinion also does not resolve a separate dispute over the scope or foreseeability of another conspirator’s conduct. Its drug-quantity analysis addresses the reliability of the evidence attributing the stated quantity to Dew.

C. The life sentence rested on both the Guidelines and individualized statutory factors

Having upheld the quantity finding, the court treated life imprisonment as a within-Guidelines sentence entitled to a rebuttable presumption of reasonableness. That presumption did not make life imprisonment mandatory or end the inquiry: the court examined the district court’s actual explanation.

The sentencing judge considered the nature and circumstances of the offense, Dew’s history and characteristics, offense seriousness, deterrence, and public protection under 18 U.S.C. § 3553(a). The judge also heard defense arguments and Dew’s allocution.

Importantly, the district court acknowledged the disparity between Dew’s punishment and those of his co-conspirators. It explained that Dew’s circumstances warranted different treatment, including the scale of his concerted activity and his use of a child to assist drug distribution. The appellate court accepted this as a reasoned justification rather than an overlooked disparity.

The Fifth Circuit also rejected Dew’s contention that significant weight had been placed on post-plea conduct. It found neither the asserted weighting problem nor a clear error of judgment.

Although the district court described its approach as a variance, the resulting sentence also matched the Guidelines recommendation. The important point was its stated intention to impose life under either approach. The appellate court did not need to decide whether that alternative explanation would make a Guidelines error harmless, because it upheld the calculation itself.

D. The appeal waiver remained unresolved

The court possessed appellate jurisdiction independently of the waiver issue. It affirmed on the merits and left the waiver’s applicability undecided. Accordingly, the opinion should not be read as invalidating, enforcing, or defining the scope of Dew’s particular waiver.

4.3. Potential Impact and Limits

Plea drafting: The decision illustrates why parties seeking to limit the Government’s sentencing position should state the commitment expressly. A factual recital of seized drugs is not a reliable substitute for a negotiated quantity provision. Any such provision must also be distinguished from a promise that binds the sentencing court; this opinion found no governmental cap and did not decide the effect of a differently structured agreement.

Preservation: Objecting to quantity and alleging breach are distinct challenges. Dew preserved the former but raised the latter only on appeal, triggering plain-error review.

Sentencing evidence: The opinion reinforces the permissibility of supported estimates in drug cases. Defendants challenging an estimate benefit from identifying concrete inconsistencies, faulty assumptions, or contrary evidence rather than relying solely on the difference between estimated distribution and actual seizures.

Sentencing explanations: The decision illustrates the appellate importance of addressing mitigation, statutory purposes, and identified disparities. The sentencing court’s individualized explanation supported affirmance despite the severity of life imprisonment.

Limits: This unpublished decision does not authorize unsupported quantity estimates, disregard express plea commitments, or establish that life imprisonment is generally appropriate for methamphetamine conspiracies. Its result depends on the agreement’s language, the plea-hearing record, the supporting testimony, and the district court’s particular sentencing explanation.

5. Complex Concepts Simplified

Factual basis for a plea: A description establishing facts supporting guilt. Unless its language and the agreement create an additional commitment, it need not exhaust all conduct relevant to sentencing.
Relevant conduct: Conduct the Guidelines permit the court to consider beyond the narrow facts stated in the conviction count. Here, it allowed consideration of additional methamphetamine distribution established by the sentencing evidence.
Presentence investigation report: A report prepared for sentencing that addresses the offense, criminal history, and Guidelines calculation. Its factual assertions require an adequate evidentiary foundation; they are not reliable simply because they appear in the report.
Plain error: A demanding review standard for an issue not properly raised below. Dew had to identify a clear or obvious breach, not merely offer a possible competing interpretation.
Clear error: A deferential standard for factual findings. A plausible finding supported by the whole record generally survives even if the defendant proposes a different interpretation.
Substantive reasonableness: Whether the sentence’s severity is justified in light of the statutory sentencing considerations, as distinct from whether the court followed correct procedures.
Variance: A sentencing choice based on the statutory factors rather than simply adopting the advisory Guidelines recommendation. Here, the judge’s independently selected punishment happened to equal that recommendation.
Presumption of reasonableness: An appellate starting point favoring a correctly calculated within-Guidelines sentence. It is rebuttable and does not turn the advisory Guidelines into a mandatory sentencing rule.

6. Conclusion

United States v. Dew confirms that a plea factual basis identifying seized drugs does not, without a corresponding commitment, cap the quantity the Government may establish at sentencing. Reliable testimony may support a substantially larger quantity, and a severe within-Guidelines sentence may survive review when supported by an individualized statutory explanation.

The opinion’s principal significance is practical rather than doctrinally novel: negotiated sentencing limits must be clear, quantity objections must confront the supporting evidence, and appellate challenges must account for preservation rules and deferential review.