USA v. Oscar Del Valle

Filing

UNPUBLISHED OPINION FILED. [09-51166 Affirmed ] Judge: EHJ , Judge: JES , Judge: EBC Mandate pull date is 01/13/2011 for Appellant Oscar Del Valle [09-51166]

USA v. Oscar Del Valle se: 09-51166 Ca

Document: 00511331091 Page: 1 Date Filed: 12/23/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51166 S u m m a r y Calendar December 23, 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. O S C A R DEL VALLE, 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. 3:08-CR-3356-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* O s c a r Del Valle pleaded guilty to conspiracy to possess with the intent to d is t r ib u t e and possession with the intent to distribute 100 kilograms or more of m a r i j u a n a . See 8 U.S.C. §§ 841(a), 846. He appeals the 110-month sentence im p o s e d upon his conviction. He argues (1) that the district court erred in d e t e r m in in g the relevant conduct attributable to him under the Guidelines, (2 ) that the district court erred in finding a common course of conduct when t h e r e was a 19-month lapse in criminal activity, and (3) that the district court
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-51166 Document: 00511331091 Page: 2 Date Filed: 12/23/2010 No. 09-51166 e r r e d in applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) based o n an aggravating or leadership role in the conspiracy. Del Valle has not shown that the district court clearly erred in holding him a c c o u n t a b le for 21 prior loads of marijuana, given the undisputed evidence that h e coordinated the 21 prior shipments using the same supplier of sodium b e n t o n it e , in which the marijuana was hidden, the same UPS warehouse, and s im ila r fictitious recipients on the bills of lading. The district court did not hold D e l Valle accountable for prior loads for which there was no bill of lading, even t h o u g h nine other loads were listed on a printout from the UPS database. The d is t r ic t court's findings on relevant conduct were supported by testimony at s e n t e n c in g from the UPS employee who opened an account for Del Valle and I m m ig r a t io n and Customs Enforcement Agent Mike Ramirez. See U.S.S.G. § 1B1.3; United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); see, e.g., U n ite d States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998). The district court's fin d in g s were plausible in light of the record as a whole. See Rhine, 583 F.3d at 885. Del Valle argues that because of the 19-month gap after the first 18 of the 2 1 bills of lading, the remaining bills of lading did not make all 21 a common c o u r s e of conduct for which he could be held responsible. See § 1B1.3, comment. (n .9 (A )). He challenges as implausible and clearly erroneous the district court's fin d in g that all shipments of sodium bentonite from 2002 to 2005 were part of a common course of conduct of marijuana trafficking. Given the extreme similarity of all 21 shipments - same supplier of sodium b e n t o n it e , same UPS warehouse, same modus operandi of hiding marijuana in t h e sodium bentonite - the district court did not clearly err in finding that all 21 b ills of lading represented marijuana loads that were part of the same course of c o n d u c t or part of a common scheme or plan. See United States v. Moore, 927 F .2 d 825, 827 (5th Cir. 1991); Rhine, 583 F.3d at 884.

2

Case: 09-51166 Document: 00511331091 Page: 3 Date Filed: 12/23/2010 No. 09-51166 D e l Valle's challenge to the two-level enhancement pursuant to § 3B1.1(c) a ls o lacks merit. A defendant qualifies for a § 3B1.1 enhancement if he was the o r g a n iz e r , leader, manager, or supervisor of one or more other participants. § 3B1.1, comment. (n.2). Del Valle told agents he would not provide the name o f the person who was paid only $200 to store marijuana. The district court f o u n d at sentencing that Del Valle oversaw other individuals involved in the tr a n sa ctio n . The district court found that Del Valle was the person who

c o n t r a c te d with UPS and other businesses to facilitate the transport of the dru gs. The district court found further that Del Valle was involved in an

e x t e n s iv e operation that involved more than one man. Del Valle has not shown c le a r error in the district court's application of the two-level enhancement p u r s u a n t to § 3B1.1(c). See Rhine, 583 F.3d at 885. AFFIRMED.

3