IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40649
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASCENCION GARZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-96-CR-314-6
--------------------
July 13, 2001
Before JOLLY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Ascencion Garza appeals his conviction and sentence after
pleading guilty to conspiracy to possess with intent to
distribute more than 1,000 kilograms of marijuana. First, he
argues that the district court erred in the amount of drugs it
attributed to him at sentencing because the information upon
which it relied did not possess sufficient indicia of
reliability. Next, he argues that the district court erred in
failing to make required conspiratorial and foreseeability
findings in connection with his relevant conduct. Finally, he
*
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that this opinion should not be published and is not precedent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. 00-40649
-2-
argues that the instant prosecution for conspiracy violated
double jeopardy because it followed a conviction for possession
with intent to distribute marijuana “arising under the same
alleged conspiracy.”
Garza’s arguments are unavailing. The district court did
not err in considering the statements of two of Garza’s
coconspirators, which are part of the record on appeal, in
arriving at its drug-quantity finding. See United States v.
Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). In any event, the
unrebutted information in Garza’s presentence report, which the
district court explicitly adopted, was sufficient to support the
court’s drug-quantity finding. See United States v. Vela, 927
F.2d 197, 201 (5th Cir. 1991); United States v. Mir, 919 F.2d
940, 943 (5th Cir. 1990). In light of that information, the
court’s drug-quantity finding was not clearly erroneous. See
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Moreover, the district court made any required conspiratorial and
foreseeability findings implicitly when it adopted the
presentence report. See United States v. Duncan, 191 F.3d 569,
575-76 (5th Cir. 1999), cert. denied, 529 U.S. 1122 (2000);
United States v. Garcia, 86 F.3d 394, 400-01 (5th Cir. 1996).
Finally, Garza’s double-jeopardy claim fails because
a substantive crime and a conspiracy to commit that crime are
separate offenses for double-jeopardy purposes. United States v.
Brown, 29 F.3d 953, 957 (5th Cir. 1994).
AFFIRMED.