IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2007
No. 06-10851
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EMILIO NOYOLA, also known as Mili
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-75-13
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Emilio Noyola appeals his sentence following his conviction for conspiracy
to distribute more than five kilograms of cocaine, more than 100 kilograms of
marijuana, and more than 500 grams of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), 846. Noyola asserts that the district court erroneously
calculated the drug quantity attributable to him when determining his guideline
range. He contends the amount of cocaine attributed to him by the presentence
report (PSR), which the district court adopted, was not supported by the
*
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should not be published and is not precedent except under the limited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. 06-10851
testimony offered at trial and improperly inflated the amount of cocaine for
which he actually was responsible.
The district court’s calculation of drug quantity is a factual finding that is
entitled to considerable deference and typically is reviewed for clear error.
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). In the instant
case, however, Noyola failed to challenge the drug quantity attributable to him
for sentencing purposes, so our review is for plain error. See United States v.
Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2005), cert. denied, 126 S. Ct.
1812 (2006). As Noyola’s fact-based argument that the PSR incorrectly
calculated the quantity of cocaine involved in his offense could have been
resolved by the district court if he had properly raised the issue there, Noyola
has not shown plain error. See Robertson v. Plano City of Texas, 70 F.3d 21, 23
(5th Cir. 1995)
Noyola has not shown that the district court committed any error, plain
or otherwise, in determining the drug quantity for sentencing purposes. Noyola
did not present any evidence to refute the PSR's finding that he was responsible
for more than 15 kilograms of cocaine, so the district court was entitled to adopt
the PSR’s estimated quantity without further inquiry. See Betancourt, 422 F.3d
at 248. Furthermore, the quantity attributed to Noyola for sentencing purposes
was independently supported by trial testimony that showed Noyola’s
participation in numerous drug transactions in which the total amount of
cocaine exceeded 15 kilograms. Therefore, even if the district court had erred in
sentencing Noyola based on the PSR’s estimated quantity, Noyola has not shown
that the error affected his substantial rights. See United States v. Olano, 507
U.S. 725, 731-37 (1993).
Noyola also contends that the district court erred in imposing the federal
sentence to run consecutively to any not-yet-imposed state sentence. Since the
date of Noyola’s sentencing, all pending state charges against him have been
dismissed. Consequently, Noyola’s challenge has been rendered moot. In any
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No. 06-10851
event, we have held that such a sentence is proper under 18 U.S.C. § 3584(a) and
U.S.S.G. § 5G1.3, (p.s.). United States v. Brown, 920 F.2d 1212, 1217 (5th Cir.
1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468, 472-
73 (5th Cir. 2006). The sentenced imposed by the district court is
AFFIRMED.
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