United States v. Hernandez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10434
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR HERNANDEZ,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-234-5-H
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February 9, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges:
PER CURIAM:*
Oscar Hernandez appeals his convictions for a drug conspiracy, possession of narcotics with
intent to distribute, and possession of a firearm in furtherance of a drug offense. He asserts that the
evidence was insufficient to support his firearms conviction. We hold that the evidence was sufficient
to find a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.
See United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en banc), aff’d, 462 U.S. 356 (1983).
Hernandez also challenges the district court’s calculation of the base offense level based upon
the information set forth in the presentence investigation report (PSR). He contends that the PSR
stated that he should be held responsible for 16,000 pounds of marijuana because he was involved
in the conspiracy for 16 months and the conspiracy received 1,000 pounds each month, but that the
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
trial testimony did not support these conclusions. He did not challenge these facts in the district
court, and review is for plain error. United States v. Krout, 66 F.3d 1420, 1434-35 (5th Cir. 1995);
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). Trial testimony supports
the statements in the PSR regarding the length of Hernandez’s involvement in the conspiracy and the
monthly drug amount attributable to the conspiracy. Hernandez also contends, as he did in the
district court, that the 16,000 pounds of marijuana was not reasonably foreseeable to him and that
he should be sentenced based only on the drug amounts connected to him at trial. Because
Hernandez was convicted for participation in a drug conspiracy, he may be sentenced based upon a
larger drug amount than he personally possessed or controlled. See United States v. Puig-Infante,
19 F.3d 929, 942 (5t h Cir. 1994). His actions as a regular runner of drugs and money and as an
individual in charge of storing drugs for the conspiracy permits a rational conclusion that Hernandez
could have reasonably foreseen these additional drug quantities.
Hernandez contends that the district court erred in not granting him a downward adjustment
for his minor role in the offense under U.S.S.G. § 3B1.2. Such a reduction is applicable only if the
defendant is substantially less culpable than the average participant. United States v. Lokey, 945 F.2d
825, 840 (5th Cir. 1991); U.S.S.G. § 3B1.2, comment. (n.3). A review of the actions taken by the
other members of the conspiracy reveals that Hernandez was an average participant and that the
district court therefore did not err in failing to award a reduction. United States v. Devine, 934 F.2d
1325, 1340 (5th Cir. 1991).
Hernandez maintains that because his sentence is significantly higher than those received by
his codefendants, the district court erred in applying the Sentencing Guidelines to him. A defendant
“cannot base a challenge to his sentence solely on the lesser sentence given by the district court to
his codefendant.” United States v. Boyd, 885 F.2d 246, 249 (5th Cir. 1989). As stated above, the
information provided in the PSR is not inherently unreliable and will not support a conclusion that
the dist rict court should not have sentenced Hernandez under the Sentencing Guidelines. His
conviction and sentence are AFFIRMED.