United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 1, 2005
Charles R. Fulbruge III
Clerk
No. 05-50182
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAESAR RODRIGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-107
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Caesar Rodriguez pleaded guilty to a superseding information
indictment charging him with attempt to manufacture
methamphetamine. Rodriguez was sentenced to a 68-month term of
imprisonment and to a three-year period of supervised release and
was ordered to pay a $1,000 fine. Rodriguez gave timely notice of
his appeal.
Rodriguez contends that the district court erred in
attributing to him at sentencing a quantity of material that was
*
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this opinion should not be published and is not precedent except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. 05-50182
-2-
byproduct and “only contained some quantity of the drug that may
have not been useable or distributable.” He contends that the
byproduct or “bones” should not have been considered in determining
his offense level.
There is no evidence in the record showing that the byproduct
was not a “mixture or substance” as defined by the guidelines. See
U.S.S.G. § 2D1.1(c), comment. (n.A). As there is no testimony on
the subject whatsoever, the district court’s determination that the
“bones” should be included as a mixture or substance containing a
detectable amount of methamphetamine is plausible in light of the
record as a whole, and is therefore not clearly erroneous.
See United States v. Parker, 133 F.3d 322, 330 (5th Cir. 1998).
The judgment is
AFFIRMED.