IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2007
No. 06-51527 Charles R. Fulbruge III
Clerk
United States of America
Plaintiff-Appellee
v.
Leonardo Saucedo-Valverde
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas, El Paso Division
USDC No. 3:06-cr-01075-KC-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:1
This is an appeal from a sentence following a guilty-plea for importing
marijuana into the United States under 21 U.S.C. §§ 952(a) and 960(a)(1), and
for possession of marijuana with intent to distribute under 21 U.S.C. § 841(a)(1).
The issue raised in this appeal is whether the district court clearly erred in
estimating the quantity of marijuana attributable to appellant, Leonardo
Saucedo-Valverde, for purposes of determining his sentence. Based on our
1
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51527
review of the record and after considering briefs of counsel, we find no clear error
and affirm.
I.
Appellant was arrested at the United States-Mexico border while driving
from Juarez, Mexico to Denver, Colorado, after border patrol officers discovered
31.80 gross kilograms (weight including packaging) of marijuana hidden inside
the dashboard. Appellant admitted that he was being paid $5,000 to transport
an unknown quantity of marijuana from Mexico to Colorado and pleaded guilty
to importing marijuana and possession of marijuana with intent to distribute.
Appellant also admitted that he had driven marijuana-laden vehicles into the
United States on two prior occasions — he previously received $4,500 to drive
a vehicle from Mexico to Colorado and $5,000 to drive a vehicle from Mexico to
Oklahoma.
Based on appellant’s statements about the prior importation of unknown
quantities of marijuana into the United States, the probation officer concluded
that it could be inferred that appellant transported the same quantity of drugs
on the two prior occasions as on this occasion, for a total of 95.37 kilograms.
Based on this inference, the probation officer assigned appellant a base offense
level of 24 pursuant to U.S.S.G. § 2D1.1(a)(3). Appellant received a two-level
“safety-valve” adjustment and a three-level adjustment for acceptance of
responsibility which resulted in a total offense level of 19. Appellant had no
prior criminal convictions and so was assigned a criminal history category of I.
Based on a total offense level of 19 and a criminal history category I, appellant’s
guideline imprisonment range was 30 to 37 months.
Appellant objected to the probation officer’s estimate of the drug quantity
as speculative and argued that there was no reliable evidence or information to
support the accuracy of the calculation. He re-urged this objection at sentencing,
but the district court overruled the objection and found that the relevant conduct
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was “correctly scored.” The district court sentenced appellant to 30 months of
imprisonment and two years supervised release.
II.
After United States v. Booker, this Court continues to review the district
court’s interpretation and application of the Sentencing Guidelines de novo.
United States v. Villaneuva, 408 F.3d 193, 203 n.9 (5th Cir. 2005), cert denied,
126 S.Ct. 268 (2005); see also United States v. Valdez, 453 F.3d 252, 262 (5th
Cir. 2006), cert denied, 127 S.Ct. 456 (2006). “The district court’s calculation of
the quantity of drugs involved in an offense is a factual determination . . .
entitled to considerable deference and will be reversed only if [it is] clearly
erroneous.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)
(internal quotations and citations omitted). Findings are deemed “clearly
erroneous only if, based on the entire evidence, [the court is] left with the
definite and firm conviction that a mistake has been committed.” Valdez, 453
F.3d at 262 (citing United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2006)).
In making a factual finding regarding the quantity of drugs attributable
to a defendant, “the district judge may consider any information that has
sufficient indicia of reliability to support its probable accuracy,” and the district
court must make such factual findings “by a preponderance of the relevant and
sufficiently reliable evidence.” Betancourt, 422 F.3d at 247. Additionally, “[a]
district court may adopt facts contained in the [Pre-Sentencing Report] (PSR)
without further inquiry if the facts have an adequate evidentiary basis and the
defendant does not present rebuttal evidence.” United States v. Alford, 142 F.3d
825, 832 (5th Cir. 1998). “The defendant bears the burden of showing that the
information in the PSR relied on by the district court is materially untrue.” Id.
(citing United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995)); see also
United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990).
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No. 06-51527
In determining appellant’s base offense level based on the types and
quantities of drugs involved, the district court was allowed to consider his
“relevant conduct” as defined in U.S.S.G. § 1B1.3. U.S.S.G. Manual § 2D1.1,
cmt. n.12 (2006); see also United States v. Wall, 180 F.3d 641, 644 (5th Cir.
1999). Such “relevant conduct” includes “all acts and omissions that were part
of the same course of conduct or common scheme or plan as the offense of
conviction.” Wall, 180 F.3d at 645. In making a factual finding as to the
applicable quantity of drugs for sentencing purposes based on such relevant
conduct, the district court was entitled to consider estimates, provided that the
estimates were reasonable and based on “relevant and sufficiently reliable
evidence.” Betancourt, 422 F.3d at 247–48 (holding that it was not clear error
for the district court to multiply the amount of drugs sold to one person by the
number of people to whom defendant sold); see also United States v. Medina, 161
F.3d 867, 876 (5th Cir. 1998) (noting that the quantity of drugs need not be
limited to the actual quantities seized; the district judge can make an estimate).
The issue in this case, therefore, is whether the district court clearly erred
in finding that the evidence was sufficient to support the inference that the
quantities of marijuana were the same in the two prior incidents in which
appellant imported marijuana into the United States as the quantity carried in
the crime of conviction.
III.
In the present case, the district court inferred that appellant smuggled the
same amount of marijuana into the United States during two prior episodes of
smuggling as he did during his third attempt. The district court based this
extrapolation on the fact that appellant was paid similarly each time and
traveled similar distances. The district court was entitled to find these facts
sufficient to conclude that the expenses for the trips were similar because the
appellant traveled approximately the same distance in each trip. Likewise, the
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No. 06-51527
court was entitled to determine that the quantities smuggled were similar
because the defendant was paid similar amounts each time—compensation
relates to risk, and risk is tied to drug quantity.2 Basing the sentence on such
facts was not clearly erroneous as this information has “sufficient indicia of
reliability to support its probable accuracy.” Valdez, 453 F.2d at 267.
In an unpublished opinion, United States v. Perez, we found evidence very
similar to that in the present case to be sufficient to support the district court’s
drug quantity estimate. 183 Fed. Appx. 477, 481 (5th Cir. 2006). In that case,
the defendant was hired by a supplier to transport three loads of marijuana into
the United States using the same vehicle each time, and he was paid the same
amount for each trip. Id. at 479. Defendant was apprehended on his third trip.
Id. From this evidence, we held that the district court did not clearly err in
finding that, for sentencing purposes, the evidence was sufficient to justify
tripling the amount attributable to defendant based on the quantity with which
he was caught upon being arrested. Id. The facts of the present case are similar
to those in Perez. In this case, appellant smuggled marijuana hidden in vehicles
into the United States three times, was paid similar or identical amounts on
each trip, traveled similar or identical distances each time, and was caught on
his third trip.
This Court’s holding in Cabrera is also instructive. 288 F.3d at 170–73.
In Cabrera, we dealt with the issue of determining how many immigrants were
smuggled by defendant into the United States on previous occasions. Id. at 171.
We held that a number-of-immigrants finding could be based on an estimate
similar to the estimations applied in cases determining applicable drug
quantities, including those involved in related conduct, for sentencing purposes.
Id. In Cabrera, we inferred that at least two immigrants were smuggled into
2
This is because base offense levels for sentencing purposes increase as quantities
smuggled increase. See U.S.S.G. § 2D1.1(c).
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No. 06-51527
the United States per trip based on the fact that defendants paid parents to
permit their children to accompany immigrants across the border. Id. at 167.
Under this scheme, the immigrants posed as the mother and father of the
children to avoid prosecution if discovered by the border patrol.3 Id. On one of
the trips, an INS agent testified, the INS found only one person used a child for
such pretense; however, we agreed with the district court that a preponderance
of the evidence supported the finding that an inference of two immigrants per
trip could be made. Id. Similarly, in the present case, where appellant was paid
$5,000 to smuggle marijuana into the United States on this trip, and where he
was paid $5,000 and $4,500 on prior trips, it is reasonable to infer that a similar
quantity of marijuana was transported on each trip.
Appellant argues that Perez is distinguishable because in this case the
supplier was different on each of his trips (at least to his knowledge) and the
vehicles used each time were different. We are not persuaded that these facts
are sufficient to undermine the district court’s findings. Appellant does not
explain why involvement of different suppliers indicates different quantities
were transported where he was paid a similar or identical fee and traveled a
similar or identical distance. Moreover, in the crime of conviction, 31.79
kilograms of marijuana were found wrapped in bundles under the vehicle’s
dashboard, and the vehicles used in the previous trips, though different vehicle
models, have dashboards and other compartments that could just as easily have
held equal quantities of marijuana. We find that the trips were sufficiently
similar such that the district court’s extrapolation of drug quantities is
reasonable and not clearly erroneous.
3
The basis for wanting to appear as a family unit rests on the fact that Border Patrol
has a policy of returning families to Mexico instead of detaining them and charging them with
illegal entry. Cabrera, 288 F.3d at 166.
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No. 06-51527
V.
Accordingly, the sentence is affirmed.
AFFIRMED.
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