United States v. Alvarado ( 2022 )

Case: 21-50169 Document: 00516352206 Page: 1 Date Filed: 06/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 10, 2022
No. 21-50169
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Orlando Alvarado,
Defendant—Appellant.
Appeal from the United States District Court
for Western District of Texas
USDC No. 7:20-CR-167-1
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Investigators uncovered significant quantities of methamphetamine
(“meth”), firearms, and $10,694 in cash proceeds belonging to Defendant-
Appellant Orlando Alvarado and his co-conspirator girlfriend. Following his
conviction of conspiracy to possess with intent to distribute meth, Alvarado
challenges the district court’s conversion of the cash proceeds to meth sales
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-50169
for purposes of his sentence. Because he fails to show that the district court
clearly erred, we AFFIRM.
BACKGROUND
In June 2020, investigators with the Ector County Sheriff’s Office
received information that Orlando Alvarado was distributing large quantities
of meth in the Midland/Odessa area. The investigators conducted three
controlled buys with Alvarado in a period of eight days, resulting in the
purchases of 5.035 grams, 5.494 grams, and 12.076 grams of actual meth,
respectively. Soon thereafter, investigators conducted surveillance on
Alvarado’s vehicle, knowing that the vehicle had been involved in the
narcotics distribution. During a stop of the vehicle, which was occupied by
Alvarado and his girlfriend, Zaria Valenzuela Lujan, agents discovered
28.505 grams of meth, a glass pipe, and a firearm. A search of Lujan’s purse
yielded a pistol, a glass pipe, a digital scale, several empty bags, an additional
1 gram of meth, and .4 grams of marijuana. Investigators arrested Alvarado
but released Lujan.
The next day, investigators executed a search warrant on Alvarado
and Lujan’s hotel room. They found a pistol, 109.7 grams of meth, 24.137
grams of heroin, 22 grams of marijuana, and $10,694. One month later,
investigators conducted a traffic stop on a vehicle Lujan was driving. She
consented to a search of the vehicle, which uncovered 28.51 grams of meth.
She told the investigators that the meth was not hers, as she had already sold
all her meth after Alvarado was arrested. She claimed that the amount sold
was approximately 3 ounces.
Alvarado pleaded guilty without the benefit of a plea agreement to one
count of conspiracy to possess with intent to distribute 50 grams or more of
actual meth, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and one
count of possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). The Presentence Investigation Report
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(“PSR”) suggested that Alvarado was accountable for 1.89 kilograms of
meth. This number represented the meth actually recovered from Alvarado
and Lujan during the controlled buys and the searches 1 (just under 300
grams), but it also represented 1,600 grams of meth converted from the
$10,694 cash proceeds. Based on the amount of meth attributed to Alvarado,
the PSR indicated a base offense level of 36 under U.S.S.G. § 2D1.1(a)(5).
After a three-point reduction for acceptance of responsibility, his total
offense level was 33. With this base level offense and a criminal history
category IV, his guidelines range was 188 months to 235 months.
Alvarado objected to the PSR’s currency-to-meth conversion. He
argued that “[t]he Government has not presented evidence that the currency
located had a relation to or should be converted to methamphetamine
purchases.” The probation officer rejected the objection, reinforcing that
the cash proceeds “are believed to be from the sales of methamphetamine.”
Both Alvarado and Lujan were unemployed with “no source of legitimate
income.” Additionally, the cash proceeds were found with 109.7 grams of
meth and a firearm, along with lesser amounts of marijuana and heroin. 2
Alvarado raised the same objection in the district court, which also did
not find it persuasive. The court concluded that it was “no great leap” to
conclude that the money was derived from sales of meth, considering both
conspirators were unemployed and that the money was found with meth and
a weapon. It therefore sentenced Alvarado to 216 months for the drug offense
and a consecutive 60-month term for the firearm offense. Alvarado timely
appealed.
1
It also included the 3 ounces Lujan admitted to selling.
2
Alvarado does not suggest than any of the cash proceeds are attributable to
marijuana or heroin sales.
3
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No. 21-50169
STANDARD OF REVIEW
This court reviews the district court’s interpretation and application
of the guidelines de novo. United States v. Angeles-Mendoza, 407 F.3d 742, 746
(5th Cir. 2005). But “[t]he district court’s calculation of drugs involved in
an offense is a factual determination,” which is “entitled to considerable
deference and will be reversed only if . . . clearly erroneous.” United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v.
Alford, 142 F.3d 825, 831 (5th Cir. 1998)). “If the district court’s account of
the evidence is plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that, had it been sitting
as the trier of fact, it would have weighed the evidence differently.” United
States v. Bermea, 30 F.3d 1539, 1575 (5th Cir. 1994). “At sentencing, the
factual findings of the district court need only be supported by a
preponderance of the evidence.” United States v. King, 979 F.3d 1075, 1083
(5th Cir. 2020).
DISCUSSION
On appeal, Alvarez reasserts his challenge to the cash-to-meth
conversion, and, for the first time, he raises an ineffective assistance of
counsel claim. His former argument lacks merit, and we decline to address
his latter argument on this undeveloped record. Accordingly, his sentence
will stand.
I. Cash-to-Meth Conversion
Alvarado’s challenge to the district court’s cash-to-meth conversion
consists of two parts. First, he contends that the district court did not make
the necessary findings to convert the currency to drugs. Second, he argues
that the record does not support the conclusion that the proceeds are
attributable to meth sales. Neither point is availing.
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When a defendant is convicted of a drug offense, his base offense level
is determined by the quantity and the type of drugs involved in the offense.
United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); § 2D1.1(a)(5), (c).
A comment to the Sentencing Guidelines provide direction for how a district
court should approximate drug quantities for purposes of sentencing.
Where there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate the
quantity of the controlled substance. In making this
determination, the court may consider, for example, the price
generally obtained for the controlled substance, financial or
other records, similar transactions in controlled substances by
the defendant, and the size or capability of any laboratory
involved.
§ 2D1.1, cmt. (n.5). Section 2D1.1 is the “only authority for converting
money into drug quantity” and, accordingly, judges “must find that one of
the two situations contemplated by § 2D1.1 Note 5 is present before doing
so.” United States v. Barry, 978 F.3d 214, 217 (5th Cir. 2020). Importantly,
though, “there is no requirement that such a finding be explicit.” Id. Rather,
“[a]dopting the PSR and overruling an objection to it can constitute a
sufficient finding where the facts in the PSR support such a finding.” Id. See
also United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017).
Alvarado contends that the district court failed to make the requisite
finding that either (1) no drugs were seized, or (2) the drugs seized do not
reflect the scale of the offense. He does not dispute that meth was seized
from him and his co-conspirator, but he asserts that the district court was
obliged to find that the amounts actually seized do not reflected the scale of
the offense before converting, and that the district court failed to do so.
To the contrary, the district court overtly adopted the facts as outlined
in the PSR, thus accepting the factual contention found therein that Alvarado
was responsible for more drugs than had been seized from him and his co-
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conspirator. This was entirely proper. A district court “can adopt facts
contained in a PSR without inquiry, if those facts have an adequate
evidentiary basis and the defendant does not present rebuttal evidence.”
United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998) (internal quotation
marks omitted). Importantly, “[m]ere objections do not suffice as competent
rebuttal evidence.” Id. (internal quotation marks omitted).
A PSR generally bears sufficient indicia of reliability for purposes of
sentencing, and it is the defendant’s burden to show that the information in a
PSR is inaccurate by presenting rebuttal evidence that the information is
“materially untrue, inaccurate or unreliable.” United States v. Taylor,
277 F.3d 721, 724 (5th Cir. 2001). Alvarado presented no rebuttal evidence,
nor has he challenged any of the facts underlying the PSR other than the
conversion. Indeed, his co-conspirator even admitted to selling 3 ounces of
meth that were never seized by the investigators, a contention that Alvarado
does not contest. Accordingly, it was not clearly erroneous for the district
court to accept the facts as presented in the PSR, including the fact that
Alvarado was responsible for more drugs than were actually seized.
Alvarado further complains that the drugs actually seized from him
consists of only 15% of the drugs he was ultimately held responsible for due
to the conversion and, thus, the record cannot support a conversion so
substantial. But he provides no counter-explanation for the funds, nor does
he offer any rebuttal evidence calling the conversion into question.
Moreover, the record amply supports the conversion of the proceeds to
meth. Investigators responded to a tip that Alvarado was distributing large
quantities of meth. They corroborated that tip by conducting three
controlled buys from him in a period of only eight days. Within a month, they
had seized hundreds of grams of meth from him and his co-conspirator. With
the meth, investigators uncovered multiple firearms, which this court has
recognized are “tools of the trade of those engaged in illegal drug activities.”
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United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir. 1987) (internal
quotation marks omitted). Furthermore, neither Alvarado nor his co-
conspirator had jobs or any other source of legitimate income. We agree with
the district court that attributing the currency to meth sales was certainly “no
great leap” given the evidence.
II. Ineffective Assistance of Counsel
Alvarado further challenges the performance of his trial counsel
because his counsel failed to object to a flaw in the conversion calculation in
the PSR. Specifically, he contends the PSR calculation improperly used the
“wholesale” price of meth rather than the “retail” price of meth, resulting
in a higher base level offense. 3 The court declines to consider the merits of
this claim on direct appeal. 4 We will only consider an ineffective assistance
claim on direct review in “rare cases in which the record allows a reviewing
court to fairly evaluate the merits of the claim.” United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014) (quoting United States v. Aguilar, 503 F.3d
431, 436 (5th Cir. 2007) (per curiam)). This is not such a case, especially
since this argument was not raised or developed in the trial court. See United
States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007) abrogated in part on other
grounds, United States v. Vasquez, 899 F.3d 363, 372 (5th Cir. 2018) (“Where
a claim of ineffective assistance of counsel has not been raised below, the
exception to our general rule of non-review is typically satisfied only where
the actual claim was raised and developed in a post-trial motion to the district
court.”).
3
Notably, Alvarado’s co-conspirator girlfriend was successful with this argument.
United States v. Lujan, 25 F.4th 324, 328–29 (5th Cir. 2022) (finding the court’s use of the
wholesale price to amount to clear error).
4
We also decline to consider the merits of the underlying objection, as Alvarado’s
retained counsel has not briefed it or otherwise presented it to this court.
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CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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