USA v. Javier Montoya-Rubio

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USA v. Javier Montoya-Rubio

Doc. 0

Case: 09-50733

Document: 00511179790

Page: 1

Date Filed: 07/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50733 S u m m a r y Calendar July 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J A V IE R MONTOYA-RUBIO, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:09-CR-728-1

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* J a v ie r Montoya-Rubio appeals the sentences imposed following his guilty p le a convictions on one count of importation of marijuana and one count of p o s s e s s io n with intent to distribute marijuana. He challenges the district court's fin d in g of the amount of marijuana attributable to him. M o n t o y a - R u b io attempted to enter the United States from Mexico in a v e h ic le containing 13.32 kilograms of marijuana hidden in a compartment under t h e backseat.
*

After authorities discovered this marijuana, Montoya-Rubio

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-50733

Document: 00511179790 Page: 2 No. 09-50733

Date Filed: 07/20/2010

a d m it t e d that he agreed, in exchange for $1,000, to transport the marijuana a c r o s s the border and to deliver it to a residence in Socorro, Texas. He further a d m it t e d that, on two occasions during the preceding three weeks, he had s u c c e s s fu lly used the same vehicle to transport an unknown quantity of m a r iju a n a from Mexico to the same residence in Socorro and was paid $1,000 on e a c h occasion. T h e district court found that Montoya-Rubio's initial two deliveries each in v o lv e d a quantity of marijuana that was equivalent to the 13.32 kilograms he a t t e m p t e d to import on February 18, 2009. Accordingly, it found that he was r e s p o n s ib le for 39.96 kilograms of marijuana, a quantity that resulted in the a s s e s s m e n t of a base offense level of 18. See U.S.S.G. § 2D1.1(a)(3), (c)(11) (Nov. 2 0 0 8 ). Montoya-Rubio contends that the district court erred in estimating the a m o u n t of marijuana involved in his two prior deliveries. I n determining a defendant's base offense level under § 2D1.1, a district c o u r t may consider as part of the defendant's relevant conduct any quantities of d r u g s that were part of the same course of conduct or common scheme or plan a s the offense of conviction. United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1 9 9 9 ); see U.S.S.G. § 1B1.3(a)(2); § 2D1.1 cmt. n.12. The district court's

d e t e r m in a t io n of the quantity of drugs attributable to a defendant for purposes o f § 2D1.1 is a factual finding that is reviewed for clear error. United States v. B e ta n c o u r t, 422 F.3d 240, 246 (5th Cir. 2005). "A factual finding is not clearly e r r o n e o u s as long as it is plausible in light of the record as a whole." (in t e r n a l quotation marks and citation omitted). A district court may estimate the amount of drugs attributable to a d e fe n d a n t ; its finding need not be limited to the actual quantities of drugs s e iz e d . United States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998); see Id.

B e ta n c o u r t, 422 F.3d at 246. A district court may extrapolate drug estimates " f r o m any information that has a sufficient indicia of reliability to support its p r o b a b ly accuracy." United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) 2

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Document: 00511179790 Page: 3 No. 09-50733

Date Filed: 07/20/2010

(in t e r n a l quotation marks and citation omitted). The finding of the amount of d r u g s attributable to a defendant is made under the preponderance of the e v id e n c e standard. Betancourt, 422 F.3d at 247. M o n t o y a -R u b io admitted that he used the same vehicle on three occasions d u r in g a three-week period to transport marijuana, the arranged payment for e a c h occasion was $1,000, and he was to deliver the marijuana to the same r e s id e n c e on each occasion. The fact that each of Montoya-Rubio's trips involved t h e same fee for transporting marijuana to the same destination using the same h id d e n compartment of a vehicle suggests that he performed the same service in each trip. In light of the similar circumstances of the three instances, the d is t r ic t court did not clearly err in estimating that Montoya-Rubio's initial two d e liv e r ie s each involved a quantity of marijuana that was equivalent to the q u a n t it y seized in his third trip. See Betancourt, 422 F.3d at 246; Medina, 161 F .3 d at 876-77; United States v. Sapien, 265 F. App'x 312, 313 (5th Cir. 2008) (u n p u b lis h e d ). AFFIRMED.

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