IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-20122
F I L E D
Summary Calendar September 18, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDUARDO AGUIRRE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-36-2
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Eduardo Aguirre appeals the 235-month sentence imposed following his
resentencing after his guilty plea conviction for aiding and abetting in the
possession with intent to distribute more than 100 kilograms of marijuana.
Aguirre argues that the district court failed to comply with this court’s
mandate at resentencing because it imposed the same sentence initially
imposed. In implementing a mandate upon remand, the district court “must
*
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should not be published and is not precedent except under the limited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. 06-20122
proceed within the letter and spirit of the mandate by taking into account the
appeals court’s opinion and the circumstances it embraces.” United States v.
Piniero, 470 F.3d 200, 205 (5th Cir. 2006). The district court complied with this
court’s mandate by allowing the Government’s informant to testify and assessing
the credibility of his testimony with respect to drug quantity.
Aguirre argues that the preponderance of the evidence did not show that
the Government’s informant was credible or that Aguirre was responsible for
distributing over 3000 kilograms of marijuana. Following United States v.
Booker, 543 U.S. 220 (2005), this court continues to review the district court’s
interpretation and application of the Guidelines de novo and its factual findings
for clear error. United States v. Villanueva, 408 F.3d 193, 202, 203 & n.9 (5th
Cir. 2005). The district court extensively questioned the Government’s
informant at resentencing and also heard the informant’s testimony on redirect
and cross-examination, which allowed the district court to evaluate the
credibility of the informant’s testimony.
The informant’s testimony showed that his various trips to Houston to
transport marijuana were all part of the same course of conduct and, thus,
constituted relevant conduct. Based upon the informant’s testimony, the district
court did not clearly err in determining that Aguirre was responsible for over
3000 kilograms of marijuana. United States v. Cabrera, 288 F.3d 163, 172 (5th
Cir. 2002).
Aguirre also argues that the district court erred by denying him a
reduction based on acceptance of responsibility. Notwithstanding the
Government’s assertion to the contrary, Aguirre’s argument is properly before
this court. See Johnson v. United States, 619 F.2d 366, 367 (5th Cir. 1980). The
district court’s determination that Aguirre did not accept responsibility for what
the evidence showed his conduct was is not without foundation. See United
States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005); United States v.
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No. 06-20122
Solis, 299 F.3d 420, 458 (5th Cir. 2002); United States v. Shipley, 963 F.2d 56,
59 (5th Cir. 1992).
AFFIRMED.
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