United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 13, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40062
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO MOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-03-CR-133-1
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Domingo Moya appeals the 60-month sentences imposed
following his convictions for possession with intent to
distribute more than 100 kilograms of marijuana and possession
with intent to distribute less than 500 grams of cocaine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C).
Moya asserts that the district court erroneously denied him a
reduction under the Sentencing Guideline’s safety valve
provision, U.S.S.G. § 5C1.2. Moya contends that the district
*
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this opinion should not be published and is not precedent except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. 04-40062
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court’s finding, that he did not truthfully provide all
information and evidence that he had concerning the offense, was
based on government speculation, which is an improper basis for
refusing the reduction.
The district court denied Moya the U.S.S.G. § 5C1.2
reduction based on the testimony of the case agent. The district
court implicitly found that Moya had not provided all the
information that he had regarding how he had obtained, and why he
had been entrusted to store, such a large quantity of marijuana.
The district court’s finding that Moya did not provide complete
and truthful information regarding his offense is plausible in
light of the record as a whole and is not clearly erroneous. See
United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999);
United States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995).
Moya next contends that the district court applied an
incorrect standard and clearly erred by denying him an offense
level reduction under U.S.S.G. § 3B1.2. He asserts that his was
a minor role because he merely allowed the drugs to be stored in
his residence. He argues that the district court did not
consider the relative culpability of the defendants.
Moya’s sentence was based on conduct with which he was
directly involved, i.e., storing drugs at his residence. Moya’s
“role was not minor, but actually coextensive with the conduct
for which he was held accountable.” United States v. Garcia, 242
F.3d 593, 598-99 (5th Cir. 2001). The district court’s finding
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that Moya was not entitled to an adjustment for being a minor
participant is not clearly erroneous. See id. at 599.
Moya challenges, for the first time, the constitutionality
of 21 U.S.C. § 841(a) and (b) in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). As Moya concedes, his Apprendi argument is
foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2000). Accordingly, the judgment of the district court is
AFFIRMED.