IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40176
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ GONZALES, also known as Fidel Salazar,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CR-207-1
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February 10, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
PER CURIAM:**
José Gonzales, also known as Fidel Salazar, appeals from his
sentence following his guilty-plea conviction for possession with
intent to distribute 297 kilograms of marijuana. Gonzales argues
that the district court erred in attributing 616 kilograms of
marijuana to him based on hearsay testimony by an FBI Special
Agent indicating that Gonzales had possessed the 616 kilograms of
marijuana six months earlier. He further argues that the
*
This matter is being decided by a quorum. 28 U.S.C. §
46(d).
**
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that this opinion should not be published and is not precedent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. 98-40176
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district court’s finding that he possessed the 616 kilograms of
marijuana must be proved by a higher standard of proof than a
preponderance of the evidence.
The burden of proof at sentencing is generally a
preponderance of the evidence, and the facts of this case do not
warrant deviation from this standard. See United States v.
Lombardi, 138 F.3d 559, 562 (5th Cir. 1998); United States v.
Mergerson, 4 F.3d 337, 343-44 (5th Cir. 1993). Factual findings
regarding relevant conduct are therefore reviewed only for clear
error. United States v. Bryant, 991 F.2d 171, 177 (5th Cir.
1993). Quantities of drugs not specified in the count of
conviction may also be included as relevant conduct, if they were
part of the same court of conduct or part of a common scheme or
plan as the count of conviction. Id.; U.S.S.G. § 1B1.3.
The district court based its factual finding on sufficiently
reliable evidence from law enforcement agents indicating that
Gonzales had previously possessed 616 kilograms of marijuana in
an identical manner as in the count of conviction. This finding
was not clearly erroneous. Accordingly, the district court’s
judgment is AFFIRMED.