UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 01-11034
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN GURRUSQUIETA; ARTURO GURRUSQUIETA,
Defendants - Appellants.
______________________________________________________________________________
On Appeal from the United States District Court for the
Northern District of Texas, Dallas Division
(3:97-CR-158-19-P)
______________________________________________________________________________
November 21, 2002
Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
Defendants Juan and Arturo Gurrusquieta appeal the sentences imposed by the district
court following their jury convictions for conspiracy to import and distribute marijuana, and other
drug related offenses. For the following reasons, we affirm the district court’s judgment and the
sentences imposed.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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I.
Juan and Arturo Gurrusquieta are both currently serving federal sentences for drug related
offenses. The two brothers were indicted on May 7, 1997, for conspiring to import and distribute
marijuana. The indictment was superseded on June 3, 1997 and again on August 28, 1997. Count
1 of the second superseding indictment charged the Gurrusquietas with conspiring to import and
distribute in excess of 1,000 kilograms of marijuana from November of 1995 through May, 13,
1997. Count 8 of the indictment charged the pair with use of a telephone in furtherance of the
conspiracy to distribute. Arturo Gurrusquieta was also charged, in Count 20, with conspiracy to
launder money, and in Counts 29 and 30 with money laundering. A jury found the defendants
guilty on all aforementioned counts.
Arturo Gurrusquieta was sentenced to 240 months in prison, which was to be followed by
a ten-year term of supervised release; in addition, a special assessment of $500 was also imposed.
On appeal, this Court remanded the matter for re-sentencing after determining that Arturo had
erroneously been held responsible for 1,000 kilograms of marijuana, when the evidence presented
at trial and in the presentence report (“PSR”) revealed that he was only responsible for 668.15
kilograms. See United States v. Robles, No. 98-10110 (5th Cir. Aug. 26, 1999)(unpublished). On
remand, Arturo was re-sentenced to a total custody term of 156 months, and to four years of
supervised release; he was also ordered to pay a mandatory special assessment of $500. Arturo
Gurrusquieta then filed timely notice of this appeal
Juan Gurrusquieta was sentenced to 120 months in custody, a five-year term of supervised
release, and was ordered to pay a mandatory special assessment of $200. He filed a notice of
appeal on January 30, 1998. This Court dismissed Juan’s appeal for want of prosecution. Juan
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Gurrusquieta then filed a 28 U.S.C. § 2255 motion and was subsequently granted an out-of-time
appeal. Juan’s new notice of appeal was timely filed on August 1, 2001.2
II.
ARTURO GURRUSQUIETA
Arturo Gurrusquieta argues that the district court committed reversible error when it
imposed a sentence enhancement under the Sentencing Guidelines, based on its determination that
he was responsible for 668.15 kilograms of marijuana. According to Arturo, Apprendi v. New
Jersey, 530 U.S. 466 (2000), requires that enhancements facts must be proved to a jury beyond a
reasonable doubt. Arturo concedes, however, that his argument is foreclosed by circuit precedent,
and raises the issue only to preserve it for Supreme Court review. Arturo also raises what he
frames as a separate argument, positing that even if Apprendi does not compel the submission of
Guideline Sentencing facts to a jury, Apprendi’s holding must be logically extended to cover
sentencing enhancements under the Guidelines.
This Court has previously held that Apprendi does not invalidate a district court’s factual
findings for purposes of determining the applicable Sentencing Guidelines when the defendant is
not sentenced beyond the statutory maximum. See United States v. Doggett, 230 F.3d 160, 166
(5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001). In this case, Arturo Gurrusquieta’s sentence
did not exceed the statutory maximum.3 We have recently reaffirmed our position on this matter,
2
This Court directed the parties to brief the issue of whether Juan Gurrusquieta’s appeal
was premature. That issue, however, is now moot because on May 23, 2002, the district court
reentered the judgment of conviction and sentence. Juan’s August 1, 2001, notice of appeal is
considered filed on the date of reentry. See Fed. R. App. P. 4(b)(2).
3
Because he had a prior conviction for a felony offense, Arturo was subject to a ten-year
maximum. Therefore his sentence of 120 months did not exceed the statutory maximum.
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holding that “no Apprendi violation occurs where a fact used in sentencing that was not alleged in
an indictment and proved to a jury does not increase the sentence beyond the statutory
maximum.” United States v. McIntosh, 280 F.3d 479, 484 (5th Cir. 2002). Controlling precedent
forecloses Arturo Gurrusquieta’s arguments, and we are bound by such precedent absent an
intervening Supreme Court decision or a subsequent en banc decision. See United States v. Short,
181 F.3d 620, 624 (5th Cir. 1999). Arturo Gurrusquieta’s sentence is therefore AFFIRMED.
III.
JUAN GURRUSQUIETA
A.
We now turn to Juan Gurrusquieta’s argument regarding the district court’s imposition of
a ten-year mandatory sentence. According to Juan, the trial court erred because it erroneously
imposed the mandatory ten-year minimum under 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and
therefore did not consider the relevant guideline range as a sentencing option. Juan submits that
the district judge mistakenly considered the amount of marijuana attributed to the conspiracy as a
whole, rather than the amount of marijuana for which he was personally responsible, when
determining if the mandatory minimum was required.
Juan Gurrusquieta objected to the applicability of the mandatory minimum for the first
time on appeal. Accordingly, his argument pertaining to the ten-year mandatory minimum is
reviewed only for plain error. See United States v. Morgan, 292 F.3d 460, 465 (5th Cir. 2002).
Under plain error review, the defendant must show “(1) an error; (2) that is clear or plain; (3) that
affects [his] substantial rights; and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
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At the onset, we note that it is not altogether clear why the district court believed that a
ten-year mandatory minimum sentence should apply. According to the PSR, case agents were able
to attribute 1,067 pounds (483 kilograms) of marijuana to Juan Gurrusquieta. In addition, the
PSR and testimony from the probation officer indicated that, together, Juan and Arturo were
responsible for suppling approximately 25 percent of the 11, 613 kilograms of marijuana
ultimately distributed by the De La Torre narcotics organization.
The court adopted the findings of the PSR, and expressly noted that the final finding with
regards to Juan was that he was responsible for 483 kilograms of marijuana –though the court
also noted that, according to the 25% figure, the actual amount could be much higher. Relying on
the 483 kilogram amount, the court determined the guideline range to be 97-121 months. The
court then stated, “Of course, we have a mandatory minimum in this case of 120 months, so 120
to 121 months becomes the range.” As noted above, Juan Gurrusquieta did not object to the
application of the mandatory minimum.
When sentencing Juan, the court again referred to the PSR and the findings of the
probation officer, stating as follows:
I’ve adopted the findings of the Probation Office contained in their pre-sentence report.
I’ll make further findings. Find that defendant was involved in the conspiracy, November,
[sic] 1995 through February of 1997, as indicated in the pre-sentence report. He was
responsible for at least 1,060 pounds of marijuana. Undertaking criminal activity, this
quantity of marijuana was reasonable [sic] foreseeable to him as being part of the general
undertaking of criminal activity. So that’s what yields the guideline range we have. We
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have a minimum of 120 months. We have a guideline range of 120 to 121 months.4
As our review of the record shows, it is not readily apparent why the district court believed the
mandatory ten-year minimum was applicable. Part of the confusion may stem from the fact that, in
Count 1, Juan was indicted for conspiring to distribute in excess of 1,000 kilograms of marijuana,
in violation of 21 U.S.C. § 841(a)(1), which carries a mandatory minimum sentence of 10 years.
Juan’s conviction under § 846, however, does not automatically trigger the mandatory minimum
sentence found in § 841(a)(1). For sentencing purposes, a defendant is only accountable for all
quantities of the marijuana with which he was directly involved, and all reasonably foreseeable
quantities of marijuana that were within the scope of the criminal activity that he jointly
undertook. See U.S.S.G § 1B1.3, comment. (n.2). In other words, an individual convicted of
conspiring to distribute at least 1,000 kilograms of marijuana under 21 U.S.C. §§ 846 and
841(b)(1)(A)(vii) is not necessarily subject to the ten-year minimum. Only if the defendant is
responsible for at least 1,000 kilograms, as determined by the Sentencing Guidelines, does the
mandatory statutory minimum apply. The district court was therefore incorrect, insofar as it
determined that 1,067 pounds (or 483 kilograms) required a ten-year mandatory minimum.
It is also possible, as the Government argues, that the district court relied on the 25 %
figure found in the PSR and determined that Juan was responsible for 25 percent of the marijuana
distributed by the De La Torre organization. The minimum amount that could be attributed to the
De La Torre organization was 9,000 kilograms, and 25 percent of that amount would be 2,250
kilograms. If this were the case, the figure would have been enough to trigger the mandatory ten-
4
For the sake of clarity, it should be noted that there was no objection to the applicability
of the mandatory minimum at this time either.
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year minimum sentence. The record does not appear to support this account of the district court’s
reasoning, but, again, it is unclear why the district court’s applied the mandatory minimum.
In any event, Juan Gurrusquieta cannot establish plain error. He acknowledges that his
120-month sentence falls within the applicable guideline range of 97 to 121 months, and this
Court has consistently held on plain error review that a defendant is not entitled to re-sentencing if
the district court could, on remand, impose the same sentence. See, e.g., United States v.
Leonard, 157 F.3d 343, 346 (5th Cir. 1998). Juan Gurrusquieta is therefore not entitled to re-
sentencing.
B.
We next turn to the issue of whether or not the district court erred when it attributed 483
kilograms of marijuana to Juan Gurrusquieta. Juan argues that, although the trial court’s sentence
of 120 months fell within the guideline range for the quantity of marijuana attributed to him in the
PSR (483 kilograms), the PSR did not properly calculate the quantity according to the sentencing
guidelines. According to Juan, the pertinent PSR facts and witness testimony only established that
he was responsible for approximately half of the amount of marijuana that was stated in the PSR
–i.e., only 246 kilograms.
This Court reviews the application of the sentencing guidelines to factual findings and
factual findings themselves for clear error. United States v. Rivera, 898 F.2d 442, 445 (5th Cir.
1990). “A factual finding is not clearly erroneous as long as the finding is plausible in the light of
the record as a whole.” United States v. Reveles, 190 F.3d 678, 685 (5th Cir. 1999)(internal
quotations and citation omitted). The applicable standard of proof for sentencing purposes is a
preponderance of the evidence. Id.
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A PSR bears sufficient indicia of reliability such that the sentencing court may rely on it to
satisfy Federal Rule of Criminal Procedure 32. See United States v. Huerta, 182 F.3d 361, 364
(5th Cir. 1999). If the facts contained in the PSR have an adequate evidentiary basis and the
defendant does not offer rebuttal evidence, they may be adopted by the sentencing court. See id.
Juan Gurrusquieta asserts that the total amount of marijuana obtained from the traffic
stops and cash seizures described in the PSR does not account for the 483 kilograms for which he
was held responsible. The PSR, however, based the 483 kilogram determination on factors other
than simply the traffic stops and cash seizures. According to the PSR:
The [483 kilograms] is based on the 216 pounds of marijuana seized on May 13, 1997
from Armando Gurrusquieta’s home, physical surveillance, intercepted wire
conversations, debriefings with codefendants, and the money that was seized during the
investigation. (Emphasis added).
In other words, physical surveillance, wire conversations and debriefings were also used to
calculate the amount for which Juan was held responsible. Juan Gurrusquieta did not offer
rebuttal evidence to show that these sources were insufficient to prove drug quantity. It was
therefore not clear error for the district court to find that Juan was responsible for 483 kilograms
of marijuana.
C.
In closing, we address, sua sponte, the issue of whether or not Juan Gurrusquieta is
entitled to Apprendi relief. Applying the plain error standard of review, we hold that, given Juan’s
concession that he was responsible for no less than 205 kilograms of marijuana, neither his prison
sentence nor his supervised release term are in excess of the statutory maximum for that drug
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quantity. He is therefore not entitled to Apprendi relief. See 21 U.S.C. § 841(b)(1)(B)(statutory
penalty for 100 kilograms or more of marijuana); United States v. Cotton, 122 S.Ct. 1781, 1786
(2002)(no plain error where evidence of drug quantity is “overwhelming” and “essentially
uncontroverted”)(internal quotation and citations omitted); United States v. Doggett, 230 F.3d
160, 166 (5th Cir. 2000)(Apprendi applies only where sentence exceeds statutory maximum),
cert. denied, 531 U.S. 1177 (2001).
IV.
For the foregoing reasons the judgment of the district court is AFFIRMED.
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United States v. Gurrusquieta
Combined Opinion