UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00235-1)
Submitted: December 17, 2010 Decided: February 7, 2011
Before AGEE, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul Ortiz pled guilty to four counts in his
superseding indictment: possession with intent to distribute
cocaine (Counts 2 and 3), possession of a firearm by a convicted
felon under 18 U.S.C. § 922(g) (2006) (Count 4), and using and
carrying a firearm during and in relation to a drug trafficking
crime under 18 U.S.C.A. § 924(c) (West Supp. 2010) (Count 5).
He was sentenced to a total of 240 months of imprisonment (180
months for Counts 2 and 3, 120 months imposed concurrently for
Count 4, and sixty months imposed consecutively for Count 5).
On appeal, Ortiz only challenges his sentence, asking
whether: (1) the district court erred at sentencing by finding
him responsible for 144 kilograms of cocaine as part of his
advisory Sentencing Guidelines range; (2) the drug amounts
attributed to him constituted relevant conduct under U.S.
Sentencing Guidelines Manual (“USSG”) § 1B1.3 (2009); and (3)
the district court committed Sixth Amendment error by sentencing
him based on conduct not admitted by him. For the reasons that
follow, we affirm Ortiz’s sentence.
First, we find no clear error in the district court’s
determination of drug quantity. United States v. Hyppolite, 65
F.3d 1151, 1158 (4th Cir. 1995) (providing review standard). We
note that the court based its estimate on Ortiz’s own statements
regarding drug amounts that he personally distributed. As is
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relevant here, the defendant may be the source of the estimate
for the amount of drugs involved. See United States v. Hicks,
948 F.2d 877, 883 (4th Cir. 1991) (holding defendant’s
statements made at his arrest could be used in calculation of
drug amounts at sentencing); United States v. Wilson, 896 F.2d
856, 857-58 (4th Cir. 1990) (finding defendant’s admission to
specific drug quantity at trial constituted adequate basis for
drug amounts).
Second, we find no clear error in the district court’s
conclusion that Ortiz’s admitted drug distribution was properly
considered part of his relevant conduct. See United States v.
Ellis, 975 F.2d 1061 (4th Cir. 1993) (sentencing court can
consider drug amounts involved in a conspiracy even if defendant
only pleads guilty to possession with intent to distribute).
Finally, we find no Sixth Amendment error in Ortiz’s
sentence. Sentencing judges may find facts relevant to
determining a Sentencing Guidelines range by a preponderance of
the evidence, so long as the Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict or guilty plea. United States v. Benkhala,
530 F.3d 300, 312 (4th Cir. 2008), cert. denied, 129 S. Ct. 950
(2009).
Accordingly, we affirm Ortiz’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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