United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-10746
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO CARRILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(4:04-CR-168-9)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Francisco Carrillo appeals his conviction
and sentence for conspiracy to distribute and possess with intent
to distribute cocaine. He raises the following grounds for relief:
(1) the evidence was insufficient to support his conviction; (2)
his sentence contravened the Sixth Amendment; (3) the district
court erred in denying him a minor-role adjustment pursuant to
U.S.S.G. § 3B1.2(b); and (4) the district court plainly erred in
giving a “deliberate ignorance” jury instruction.
Construing the evidence in the light most favorable to the
Government, we hold that any reasonable trier of fact could have
*
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this opinion should not be published and is not precedent except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.
found that the evidence established beyond a reasonable doubt that
Carrillo knew of, and voluntarily participated in, the agreement to
violate federal narcotics law. See United States v. Jaramillo, 42
F.3d 920, 922-23 (5th Cir. 1995); United States v. Ivy, 973 F.2d
1184, 1188 (5th Cir. 1992). Notably, Carrillo was entrusted with
nearly $18,000 in cash and $72,500 in cocaine; Carrillo conducted
a “heat run” in an effort to avoid being followed to his home after
picking up the cocaine and currency; and Carrillo was paid $250 for
the errand —— a sum the jury could reasonably infer was
disproportionate to one paid for running an errand to pick up
automobile parts.
Carrillo correctly concedes that Supreme Court precedent
forecloses his argument that his prior convictions could not be
used to enhance his sentence when calculating his criminal history
score, and he raises this argument solely to preserve its further
review by the Supreme Court. See United States v. Booker, 543 U.S.
220, 244 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Carrillo’s contention that the district court contravened the Sixth
Amendment by enhancing his criminal history score based on a
finding that he had committed the instant offense while on
probation is untenable; post-Booker, “[t]he sentencing judge is
entitled to find by a preponderance of the evidence all the facts
relevant to the determination of a Guideline sentencing range and
all facts relevant to the determination of a non-Guidelines
sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
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We further hold that the district court did not clearly err in
refusing Carrillo a minor-role adjustment under § 3B1.2(b). See
United States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 268 (2005). The record established that
Carrillo’s participation, albeit isolated, was not “peripheral” to
the conspiracy but was an integral part of the transaction between
Charon and Ruiz, which served to advance the conspiracy. See
United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).
Finally, we hold that the district court did not plainly err
in issuing a “deliberate ignorance” jury instruction. The evidence
established Carrillo’s subjective awareness of a high probability
of the existence of illegal conduct, the likelihood of criminal
wrongdoing was high, and the circumstances surrounding Carrillo’s
activities were extremely suspicious; therefore, his failure to
conduct further inquiry justified an inference of deliberate
ignorance. See United States v. Freeman, 434 F.3d 369, 378 (5th
Cir. 2005); United States v. Saucedo-Munoz, 307 F.3d 344, 348 (5th
Cir. 2002).
AFFIRMED.
3