IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40394
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE LUIS GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(M-99-CR-546-1)
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February 28, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant George Luis Gutierrez appeals his sentence
for conspiracy to possess with intent to distribute 1,540 kilograms
of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A). Gutierrez argues first that the district court erred
when it increased his base offense level by four pursuant to
U.S.S.G. § 3B1.1(a) for being the leader or organizer of a criminal
activity that involved five or more participants or was otherwise
extensive. Specifically, Gutierrez complains that the Presentence
Investigation Report (PSR) improperly contains the conclusions of
*
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that this opinion should not be published and is not precedent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.
the DEA agents. The PSR contained more than the bald assertions
and conclusions of the DEA agents and was sufficient to support a
finding that Gutierrez was a leader or organizer. See United
States v. Elwood, 999 F.2d 814, 817 (5th Cir. 1993). As Gutierrez
presented no rebuttal evidence at sentencing, the district court
was entitled to rely on the PSR in making its factual
determinations. See United States v. Alford, 142 F.3d 825, 832
(5th Cir. 1998).
Gutierrez next contends that the district court erred when it
enhanced his sentence pursuant to U.S.S.G. § 3B1.4 for the use of
minors to commit a crime. We review the district court's factual
findings for clear error. See United States v. Thomas, 120 F.3d
564, 574 (5th Cir. 1997). Gutierrez admitted at sentencing that
his wife and children were present with him while he supervised the
transportation of marijuana. The district court could infer that
Gutierrez had orchestrated the presence of his children in an
attempt to give the appearance of a family traveling together and
thereby avoid detection by law enforcement. Such an inclusion of
children is a "use" of minors for purposes of § 3B1.4.
Gutierrez asserts next that application of § 3B1.4 violates
the Ex Post Facto Clause because there is no evidence that he used
his children after November 1, 1995, the effective date of this
guideline. As Gutierrez did not raise this objection in the
district court, our review is limited to plain error. See United
States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). Gutierrez
pleaded guilty to a conspiracy that lasted until after the
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effective date of the subject guideline provision. Therefore,
application of the guideline did not violate the Ex Post Facto
Clause. See United States v. Buckhalter, 986 F.2d 875, 880 (5th
Cir. 1993).
Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 2362-63 (2000), Gutierrez argues that the district
court erred when it enhanced his sentence as a career offender
based on prior criminal history that was not alleged in the
indictment and submitted to the jury. Apprendi expressly states,
however, that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Id. at 2362-63. Thus, Apprendi does not
require that Gutierrez's prior convictions be alleged in the
indictment. Moreover, Gutierrez's sentence of 292 months does not
exceed the statutory maximum based on his criminal history, so
Apprendi would not be applicable even absent its recidivism
exception. See United States v. Doggett, 230 F.3d 160, 165 (5th
Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 4,
2001)(No. 00-7819); 21 U.S.C. § 841(b)(1)(A).
AFFIRMED.
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