IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10883
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WBLESTER PINEDA RODRIGUEZ;
MIGUEL ROJAS RIVERA,
Defendants-Appellants.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:97-CR-96-2
- - - - - - - - - -
June 30, 1999
Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Wblester Pineda Rodriguez appeals from his conviction of
possession with intent to distribute methamphetamine and
conspiracy to possess with intent to distribute methamphetamine.
Rodriguez and Miguel Rojas Rivera appeal from their sentences for
both offenses. Rodriguez contends that the evidence was
insufficient to support his conviction; that the district court
erred by adjusting his offense level for obstruction of justice
based on his trial testimony; and that the district court erred
*
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that this opinion should not be published and is not precedent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. 98-10883
-2-
by declining to adjust his offense level for minimal
participation. Rivera contends that the district court erred by
adjusting his offense level because he was a leader or organizer
and that he received ineffective assistance of counsel at
sentencing. Rodriguez and Rivera both contend that the district
court erred by attributing methamphetamine from a September 1997
transaction to them.
The evidence at trial was sufficient to prove that Rodriguez
knowingly possessed methamphetamine in November 1997 and that he
intended to distribute that methamphetamine. United States v.
Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993). The evidence was
sufficient to prove an agreement to move methamphetamine from
California to Texas; Rodriguez’s knowledge of that agreement; and
Rodriguez’s voluntary participation in the agreement. United
States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989).
The finding that Rodriguez committed perjury at trial was
not erroneous. Rodriguez’s testimony about his participation in
the offense was directly contradicted by other evidence at the
trial. The district court could have found that Rodriguez
willfully gave false testimony concerning material matters. See
United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Rodriguez was sentenced on activity in which he actually was
involved. No downward adjustment for Rodriguez’s role in the
offense was necessary. United States v. Atanda, 60 F.3d 196, 199
(5th Cir. 1995).
The finding that Rivera was a leader or organizer was not
erroneous. There were five or more participants in Rivera’s
No. 98-10883
-3-
offense and the nature and extent of Rivera’s participation in
the offense were sufficient for a leader/organizer finding. See
United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994); United
States v. Barreto, 871 F.2d 511, 512 (5th Cir. 1989).
Finally, the estimate used for the September 1997 drug run
was not erroneous. See United States v. Sherrod, 964 F.2d 1501,
1508 (5th Cir. 1992). The two drug runs were done in near-
identical fashion; it was not unreasonable to assume that the
same amount of methamphetamine was involved in both drug runs.
AFFIRMED.