IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-41201
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO RODRIGUEZ, JR.,
a/k/a Alejandro Rodriguez-Illescas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-101-2
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October 29, 1997
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alejandro Rodriguez, Jr. was charged with conspiracy to
possess with intent to distribute 368 grams of heroin (Count 1).
In a superseding indictment, he was also charged with possession
with intent to distribute 93 grams of heroin (Count 2). A jury
found Rodriguez guilty on both counts, and the district court
sentenced him to concurrent terms of 70 months of imprisonment on
each count, to be followed by concurrent terms of supervised
*
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this opinion should not be published and is not precedent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.
No. 96-41201
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release. Rodriguez appeals.
First, Rodriguez argues that the district court erred in
denying him a reduction of his offense level for acceptance of
responsibility. We find no error in the district court’s
determination that Rodriguez was not entitled to a sentence
reduction for acceptance of responsibility. See U.S.S.G. §
3E1.1(a); United States v. Spires, 79 F.3d 464, 467 (5th Cir.
1996) (holding that whether a defendant has sufficiently
demonstrated acceptance of responsibility is a factual question.
The standard of review is even more deferential than it is for
clear error).
Second, Rodriguez argues that the district court erred in
determining the quantity of drugs attributable to him for
sentencing purposes. After conducting a hearing, the district
court found that Rodriguez was responsible for 368 grams of
heroin. The court based this finding on evidence that another
individual hid 368 grams of heroin in the backyard of the
defendant’s home after being pursued by immigration agents.
During the hearing, Rodriguez admitted that he had possessed the
93 grams that were seized at the time of his arrest, but denied
involvement with the entire 368 grams. The district court’s
determination of drug quantity is reviewed for clear error and
need be supported only by a preponderance of the evidence. This
is a highly deferential standard of review. Here, however, the
court’s finding that Rodriguez was responsible for the entire 368
No. 96-41201
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grams (13 ounces) is not supported by a preponderance of the
evidence. See United States v. Carreon, 11 F.3d 1225, 1230 (5th
Cir. 1994); U.S.S.G. § 1B1.3(a)(1)(A). The evidence does not
support a finding that the entire 13 ounces of heroin reached
Rodriguez’s house or that he was involved in the original
conspiracy to possess with intent to distribute that amount. The
district court’s finding is clearly erroneous. See Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985).
We VACATE Rodriguez’s sentence and REMAND to the district
court for reconsideration of the amount of drugs at issue in this
case for sentencing purposes. See Carreon, 11 F.3d at 1230.
CONVICTION AFFIRMED; SENTENCED VACATED AND REMANDED.