IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 2, 2009
No. 08-50634
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO ARZATE, JR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1853-1
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Arzate, Jr., a former United States Border Patrol officer, appeals
the 660-month sentence imposed by the district court following his guilty plea
conviction for conspiracy to possess with intent to distribute over 500 grams of
cocaine and two counts of bribery of a public official. Arzate argues that the
district court erred in calculating the amount of drugs attributable to him and
that the sentence imposed was unreasonable under the factors in 18 U.S.C.
§ 3553(a). He also asserts that the sentence imposed was not entitled to a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50634
presumption of reasonableness, and he argues for the first time on appeal that
there was no empirical evidence to support the guideline under which his
sentence was calculated.
Pursuant to Gall v. United States, 128 S. Ct. 586 (2007), we engage in a
bifurcated review process of the sentence imposed by the district court. United
States v. Delgado-Martinez, No. 08-50439, F.3d , 2009 WL 902390, at *1
(5th Cir. Apr. 6, 2009). First, we consider whether the district court committed
“a significant procedural error,” such as miscalculating the advisory guidelines
range. Id. Remand is required if such an error occurred unless the proponent
of the sentence establishes that “the error did not affect the district court’s
selection of the sentence imposed.” Id. at *2 (quoting Williams v. United States,
503 U.S. 193, 203 (1992)). If there is no error or the error is harmless, this court
may proceed to the second step and review the substantive reasonableness of the
sentence imposed for an abuse of discretion. Id. at *1-2.
We review the district court’s determination of drug quantity for clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). The
district court based its determination of drug quantity on Arzate’s admission
that he had been allowing loads of drugs to pass through a border checkpoint for
fifteen years. He admitted to having allowed loads of five to ten kilograms of
cocaine to pass through the checkpoint for a man named Froylan Villanueva.
The estimate that he allowed ten kilograms from Villanueva to pass through the
checkpoint is not clearly erroneous. See United States v. Davis, 76 F.3d 82, 84-85
(5th Cir. 1996).
Arzate also admitted that he had been paid $3,000-$7,000 every three or
four months by David Soto to allow drugs to pass through the border checkpoint
and that this activity had occurred between 2001 and 2006. The district court’s
estimate that Arzate allowed 15 loads of drugs to pass through the checkpoint
during this time frame also is supported. Although Arzate contends that his
offense involved both marijuana and cocaine, the only transaction shown to have
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No. 08-50634
involved marijuana is one that involved a cooperating witness. Arzate’s
admitted dealings with Soto and with Soto’s partner involved cocaine. The one
transaction with Soto to which Arzate specifically admitted involved Arzate’s
transportation of a load of 40.8 kilograms of cocaine across the border. Although
this incident involved more active conduct by Arzate, he has not provided any
evidence as to why this amount does not constitute a reliable estimate of the
amount of cocaine contained in the other loads that were passed through the
border on Soto’s behalf. Arzate’s contention that he was paid $1,000 a kilogram
to allow drugs to pass through the border on someone else’s behalf does not
dispel the reliability of the district court’s calculation. Using that figure, Arzate
should have received at least $40,800 to drive the load containing 40.8 kilograms
of cocaine through the border checkpoint. Instead, he received $14,000. Because
the district court based its drug quantity calculation on the only type and
quantity of drugs that Arzate admitted were transported across the border on
Soto’s behalf, the district court did not clearly err in estimating that Arzate’s
offense involved allowing 15 loads of 40.8 kilograms of cocaine to pass through
the checkpoint. See Betancourt, 422 F.3d at 247-48.
Arzate also argues that the sentence imposed by the district court is
unreasonable because it was greater than necessary to achieve the sentencing
goals sent forth in 18 U.S.C. § 3553(a). He contends that he does not pose a
danger to the public, that the 55-year sentence is not necessary for deterrence
purposes since he is 48 years old and would be over 90 by the time of his release,
and that a 15 to 30-year sentence would be sufficient to deter other criminals.
He also contends for the first time on appeal that the sentence imposed by the
district court is based on a guideline that lacks empirical support.
Because the district court imposed a sentence within the properly
calculated guidelines range, it is presumptively reasonable, and this Court “will
infer that the judge has considered all the factors for a fair sentence set forth in
the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005); see
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No. 08-50634
Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Arzate’s contention that his
sentence is unreasonable because it is based on a guideline lacking empirical
support is without merit. See United States v. Mondragon-Santiago, No. 07-
41099, ___ F.3d ___, 2009 WL 782894, at *9 (5th Cir. Mar. 26, 2009). The
district court rejected Arzate’s request for a shorter sentence, determining that
his offense was very serious, that he had harmed a number of people through his
actions, that his offense conduct had occurred over the course of many years, and
that it was important to deter other government agents from abusing their
position of trust. Arzate has not shown that the sentence imposed was
unreasonable. See Mares, 402 F.3d at 519; United States v. Rodriguez, 523 F.3d
519, 525-26 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
AFFIRMED.
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