Case: 11-10171 Document: 00511716181 Page: 1 Date Filed: 01/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2012
No. 11-10171
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELODY MARIE RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Melody Rodriguez pleaded guilty of possession with intent to distribute
more than fifty grams of a mixture and substance containing methamphetamine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Her sentence was calculated
based on a quantity of actual methamphetamine or “ice” of more than 1.5 kilo-
grams. The court enhanced the sentence for her possession of a rifle, her lead-
Case: 11-10171 Document: 00511716181 Page: 2 Date Filed: 01/05/2012
No. 11-10171
ership role, and the determination that her offense involved the importation of
methamphetamine. The court then made a downward departure for Rodriguez’s
assistance to the government’s investigation of other individuals. The court cal-
culated the sentence by dividing the bottom of the guideline range in half, result-
ing in 180 months’ imprisonment and five years of supervised release.
Rodriguez appeals the determination that (1) her offense involved the
importation of methamphetamine and (2) the amount of methamphetamine or
“ice” was greater than 1.5 kilograms. We affirm.
I.
The sentence was enhanced under U.S.S.G. § 2D1.1(b)(4) because the dis-
trict court determined that the offense “involved the importation of ampheta-
mine or methamphetamine. . . .” Rodriguez argues that theoffense did not
involve the importation of methamphetamine, because the importation was com-
plete before she came into possession, and she was not involved in the importa-
tion. Because we do not construe “involved the importation” as narrowly as does
Rodriguez, we agree with the district court that her offense involved the impor-
tation of methamphetamine.
The methamphetamine was transported from Mexico to the Dallas area
by the La Familia drug trafficking organization, then stored in the “stash house”
of its local leader, Arnulfo Hernandez. Hernandez sold the methamphetamine
to Rolando Vasquez, who sold it to Rodriguez on about six to ten instances over
the course of approximately two to three months. Hernandez sometimes accom-
panied Vasquez to deliver the drugs to Rodriguez.
Rodriguez and the government agree that importation of a controlled sub-
stance “is a continuous crime that is not complete until the controlled substance
reaches its final destination point.” United States v. Gray, 626 F.2d 494, 498
(5th Cir. 1980). Rodriguez argues that the final destination was Hernandez’s
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No. 11-10171
“stash house,” where the drugs were stored before being distributed to Vasquez
and Rodriguez, so Rodriguez’s possession happened after the importation was
complete. Even if we accept Rodriguez’s narrower interpretation of “importa-
tion,” it means only that she did not import the drugs, not that her possession
did not involve importation.
The scope of actions that “involve” the importation of drugs is larger than
the scope of those that constitute the actual importation. If the Sentencing Com-
mission had wanted section 2D1.1(b)(4) to apply only to the importation of meth-
amphetamine, “it would have used the language it used in the prior subsection,
which applies a separate enhancement only ‘[i]f the defendant unlawfully
imported or exported a controlled substance’ under certain circumstances.”
United States v. Perez-Oliveros 479 F.3d 779, 784 (11th Cir. 2007) (quoting
U.S.S.G. § 2D1.1(b)(2)). Here, “involved” means “included in the process of.” Just
as building a house may involve importing building materials, possessing meth-
amphetamine in Dallas may involve its importation to the Dallas area. Rodri-
guez’s proximity, familiarity, and repeated business with the importers justifies
the enhancement. Accordingly, we sustain the district court’s application of sec-
tion 2D1.1(b)(4) to Rodriguez’s offense.
II.
Rodriguez contends that, even if her offense did involve the importation
of methamphetamine, section 2D1.1(b)(4) includes an implicit mens rea require-
ment of knowledge, and there is no evidence that Rodriguez knew the drugs
were imported. We need not reach the question of whether knowledge is
required for section 2D1.1(b)(4), because there is sufficient evidence to support
the finding that Rodriguez knew the drugs were imported. Our review of the
district court’s factual findings is for clear error. United States v. Cisneros-Guti-
errez, 517 F.3d 751, 764 (5th Cir. 2008).
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No. 11-10171
Rodriguez and her husband had an established relationship with Vasquez,
from whom they had been buying drugs weekly for at least nine months. Rodri-
guez had been buying from Vasquez for only about three months, but she took
over for her husband after he was incarcerated. Furthermore, Hernandez, the
local leader of a drug-trafficking organization based in Mexico, would sometimes
accompany Vasquez to Rodriguez’s house to deliver drugs. Rodriguez’s husband
was sufficiently familiar with Hernandez that he referred to him by the nick-
name “Primo.” It is not clearly erroneous for the district court to infer from
these facts that Rodriguez knew of the drugs’ source in Mexico.
III.
Rodriguez claims the district court lacked sufficient evidence for its conclu-
sion that she was responsible for a total of 1.66 kilograms of methamphetamine.
We review the district court’s factual determinations for clear error, id., and we
conclude that the court did not clearly err in its determination, because there
was sufficient evidence on which to base its determinations of the quantity and
purity of the methamphetamine mixture.
The court based its determination that Rodriguez distributed approxi-
mately 1.66 kilograms on testimony that she purchased approximately eight
ounces from Vasquez on six to ten occasions. Rodriguez contends that there was
insufficient evidence on the purity of the 1.66 kilograms of methamphetamine
mixture, because only 306.9 grams of methamphetamine was seized from
Rodriguez.
We disagree. The three samples of mixture recovered from Rodriguez had
purities of 97.1%, 97.6%, and 98.2% methamphetamine. There was also testi-
mony that Vasquez was Rodriguez’s sole supplier and that Hernandez was Vas-
quez’s sole supplier. Furthermore, all of the transactions between Rodriguez and
Vasquez were at the constant price of $1,100 per ounce of mixture. It is there-
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No. 11-10171
fore not clear error to infer that the unseized drugs had similar purity levels.
This is especially true given that the sentencing guidelines recommend the same
base offense level so long as the offense involved at least 1.5 kilograms of a mix-
ture consisting of at least 80% methamphetamine.1 Therefore, the district court
only had to conclude that the unseized mixture was more than 80% pure, a con-
clusion for which there was ample evidence.
The judgment of sentence is AFFIRMED.
1
See U.S.S.G. § 2D1.1(c)(1) (assigning a base offense level of 38 for offenses involving
at least 1.5 kilograms of actual methamphetamine or “ice,” which is defined as a mixture con-
taining at least 80% methamphetamine).
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