Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-23-2003
USA v. Durrder
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3676
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Recommended Citation
"USA v. Durrder" (2003). 2003 Decisions. Paper 190.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-3676
UNITED STATES OF AMERICA
v.
CARLOS DURRDER,
a/k/a Pedro Jiminez,
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 99-cr-00364-8)
District Judge: Honorable William H. Yohn, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2003
BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Opinion Filed: October 23, 2003)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Pedro Jiminez, a/k/a Carlos Durrder, was convicted by a jury of
conspiring to distribute heroin and several other drug offenses. He was sentenced to 169
months of imprisonment. On appeal, we remanded to the District Court for a
resentencing hearing at which factual findings would be made regarding the amount of
drugs that were to be attributed to the defendant. On remand, the District Court made the
required findings and resentenced Jiminez to 169 months.
On this second appeal, Jiminez insists that prejudicial hearsay was admitted
at his trial. He made no such claim in his first appeal, and it is accordingly waived.
Claims of error that could and should have been raised on appeal are not preserved for
review in a subsequent appeal. United States v. Pultrone, 241 F.3d 306, 307-08 (3d Cir.
2001).
Jiminez’s only other challenge to the judgment on review is a claim that the
District Court erred in concluding that he was responsible for distributing approximately
4000 grams of heroin. Our review of the record convinces us that there was ample
reliable evidence in the trial record to support this conclusion.
United States Sentencing Guidelines § 2D1,1 directs district courts to
estimate quantities of unseized drugs. That section provides that “where there is no drug
seizure or the amount seized does not reflect the scale of the offense, the Court shall
approximate the quantity of the controlled substance. In making this determination, the
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court may consider, for example, similar transactions in controlled substances by the
defendant.” U.S.S.G. § 2D1,1 app. note 12 (1998).
Duran-Mariano and Peralta-Victorio were active participants in the drug
conspiracy who testified at length about how often Jiminez had supplied them with heroin
for resale and in what quantities. The District Court analyzed their testimony and
reasonably and conservatively extrapolated to estimate Jiminez’s distributions throughout
the life of the conspiracy.
The Sentencing Guidelines do not demand certainty and precision. They
demand that the Court do the best it can with the evidence in the record, erring on the side
of caution. See United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). The District
Court followed the letter and spirit of the law, and we can find no fault with its resulting
estimate.
The judgment of the District Court will be affirmed.
TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
/S/ Walter K. Stapleton
____________________________
Circuit Judge
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