United States v. Nunez

Case: 08-11024 Document: 00511057862 Page: 1 Date Filed: 03/22/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 22, 2010
No. 08-11024
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEDRO ALBERTO NUNEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:08-CR-11-1

Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Pedro Alberto Nunez pleaded guilty, pursuant to a plea agreement, to
possession with intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 18 U.S.C. § 2. The district court imposed
a 188-month sentence and a three-year term of supervised release.
Nunez argues that the sentencing disparity between defendants who
possess actual methamphetamine and defendants who possess a substance

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
 Case: 08-11024 Document: 00511057862 Page: 2 Date Filed: 03/22/2010
No. 08-11024

containing a detectable amount of methamphetamine is contrary to the intent
of Congress and violates the Equal Protection Clause. We have rejected similar
arguments, holding that the sentencing disparity created by the 10 to one ratio
betw een actual m etham phetam ine a nd a substance containing
methamphetamine is not irrational or arbitrary and, as a result, does not violate
the Due Process Clause. United States v. Molina, 469 F.3d 408, 413-14 (5th Cir.
2006). For similar reasons, Nunez’s equal protection argument fails. See
Chapman v. United States, 500 U.S. 453, 465 (1991).
Nunez also argues the district court erred in calculating the drug quantity
attributable to him and in applying the two-level enhancement for importation
of methamphetamine. The district court’s findings, however, were plausible in
light of the record as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). Thus, the district court did not clearly err in
calculating the drug quantity and in applying the two-level enhancement. See
id. Accordingly, the district court’s judgment is AFFIRMED.

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