United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 15, 2004
Charles R. Fulbruge III
Clerk
No. 04-50348
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA KANE FARIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:03-CR-1797-ALL-DB)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Joshua Kane Farias appeals his sentence, following his guilty
plea convictions for conspiracy to possess and possession with
intent to distribute 50 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He
contends the district court erred in imposing a two-level
enhancement pursuant to U.S.S.G. § 3B1.4 for using his two minor
children to avoid detection of his offenses.
*
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this opinion should not be published and is not precedent except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 district court’s application of the Sentencing Guidelines
is reviewed de novo; its factual findings for clear error. E.g.,
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). Farias
admitted that he was instructed to take his children on drug-
smuggling trips to avoid detection by law enforcement, and his
children accompanied on two such trips. He failed to provide any
other plausible explanation for taking his children with him on
those trips. The district court did not clearly err. See United
States v. Alarcon, 261 F.3d 416, 423 (5th Cir. 2001).
Farias also contends, for the first time on appeal, that the
increase of his sentence due to drug quantity was improper under
Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), because those
facts were not alleged in the indictment and not found beyond a
reasonable doubt by the district court or admitted by him. As
Farias concedes, this contention is foreclosed by United States v.
Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert.
filed, (U.S. 14 July 2004) (No. 04-5263).
AFFIRMED
2