Case: 16-10210 Document: 00513772884 Page: 1 Date Filed: 11/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10210 FILED
Summary Calendar November 25, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL BONILLA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-153-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Miguel Bonilla contests the sentence imposed for his conviction for
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine. Bonilla challenges the district court’s calculation of the
drug quantity attributable to him for purposes of U.S.S.G. § 2D1.1(c) and the
assessment of the enhancements under § 2D1.1(b)(1) for possession of a
dangerous weapon and § 2D1.1(b)(2) for making a credible threat of violence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10210 Document: 00513772884 Page: 2 Date Filed: 11/25/2016
No. 16-10210
According to Bonilla, the district court committed clear error regarding the
those rulings because its factual findings supporting the rulings were based on
unreliable and uncorroborated statements by Erica Ayala, an individual
involved in methamphetamine transactions with Bonilla.
We review for clear error the district court’s factual findings concerning
the applicable drug quantity under § 2D1.1(c) and the enhancements under
§ 2D1.1(b)(1) and (2). United States v. Rodriguez-Guerrero, 805 F.3d 192, 195
(5th Cir. 2015); United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
“A factual finding is not clearly erroneous as long as it is plausible in light of
the record as a whole.” Betancourt, 422 F.3d at 246 (internal quotation marks
and citation omitted).
A district court may determine drug quantities for sentencing purposes
provided that the calculation is based upon reliable evidence, such as the
presentence report. United States v. Alford, 142 F.3d 825, 831–32 (5th
Cir. 1998). The defendant has the burden of presenting rebuttal information
to show that the information set forth in the presentence report is “materially
untrue, inaccurate or unreliable.” United States v. Harris, 702 F.3d 226, 230
(5th Cir. 2012) (internal quotation marks and citation omitted). The court may
extrapolate drug estimates “from any information that has sufficient indicia of
reliability to support its probable accuracy,” including a law enforcement
agent’s testimony and uncorroborated hearsay evidence. United States v.
Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and
citation omitted); see United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996).
“Credibility determinations in sentencing hearings are peculiarly within the
province of the trier-of-fact.” United States v. Sotelo, 97 F.3d 782, 799 (5th Cir.
1996) (internal quotation marks and citation omitted).
2
Case: 16-10210 Document: 00513772884 Page: 3 Date Filed: 11/25/2016
No. 16-10210
We conclude the district court’s determination of the applicable drug
quantity was plausible in light of the record as a whole. Ayala’s statements
indicating that Bonilla was involved extensively in methamphetamine
trafficking were supported by information provided by Bonilla’s girlfriend and
co-defendant, Kelly James, as well as the testimony of an investigating officer
at Bonilla’s sentencing hearing. Given the evidence of Bonilla’s considerable
dealings in methamphetamine, the district court’s estimate of the quantity of
methamphetamine Bonilla distributed to Ayala is not clearly erroneous.
The district court’s findings that Bonilla possessed a dangerous weapon
and made a credible threat of violence also are not clearly erroneous. In
addition to Ayala’s statement that Bonilla always carried a handgun during
their drug transactions, James indicated that Bonilla sold a firearm to a co-
conspirator during the conspiracy. Moreover, it was plausible for the district
court to credit Ayala’s version of the events that led to Bonilla taking
possession of Ayala’s vehicle, including Ayala’s statements that Bonilla pointed
a shotgun at her and threatened harm to her if she did not pay a drug debt.
Bonilla also raises an argument that he concedes is foreclosed by circuit
precedent, which is that his rights to due process under the Fifth Amendment
and to confront and cross-examine witnesses under the Sixth Amendment were
violated at sentencing because the district court’s findings were made without
live testimony from out-of-court declarants. Bonilla is correct that this
argument is foreclosed by circuit precedent. See United States v. Beydoun, 469
F.3d 102, 108 (5th Cir. 2006).
AFFIRMED.
3