United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-10477
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CORNELIO BANDA
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:05-CR-40-2
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Cornelio Banda appeals his sentence following his conviction
for conspiracy to distribute and possess with intent to
distribute more than 500 grams of methamphetamine and possession
with intent to distribute less than 50 grams of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), 846. He argues that the
district court erroneously calculated the drug quantity
attributable to him when determining his guideline range.
We review the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error.
*
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this opinion should not be published and is not precedent except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. 06-10477
-2-
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
The district court’s calculation of drug quantity is a factual
finding that is entitled to considerable deference and is
reviewed for clear error. 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.” Id. (internal quotation and citation omitted).
Testimony at trial showed that Banda was involved in
numerous drug transactions as both a supplier and receiver of
methamphetamine. For example, Banda supplied drugs to Michael
Fletcher weekly from March 2004 to June 2004 in varying amounts.
Banda concedes that a conservative estimate of one ounce per week
would equate to one pound of methamphetamine. He also supplied
drugs to Fletcher on four or five subsequent occasions in amounts
of one to two ounces. Banda was connected to at least two other
transactions involving pound quantities, was involved in multiple
transactions of lesser amounts, and engaged in bartering his dogs
for drugs. The district court is permitted to make reasonable
estimates of drug quantities and may make reasonable inferences
from the facts. Betancourt, 422 F.3d at 246. In light of this
and the wide latitude afforded the district court’s findings, the
district court’s conclusion that Banda was involved with at least
1.5 kilograms of methamphetamine was not clearly erroneous based
on the record as a whole. See id.
No. 06-10477
-3-
Banda also argues that the district court’s determination of
facts relevant to determining the guideline range violates his
Sixth Amendment rights and Apprendi v. New Jersey, 530 U.S. 466
(2000). Banda correctly concedes that this argument is
foreclosed. See United States v. Mares, 402 F.3d 511, 518-19
(5th Cir. 2005).
AFFIRMED.