United States v. Villegas , 350 F. App'x 904 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 08-40933
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO CERVANTES VILLEGAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-1089-3
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ricardo Cervantes Villegas challenges his sentence following his guilty
plea conviction on one count of conspiracy to possess with intent to distribute
more than five kilograms of cocaine and more than 100 but less than 1,000
kilograms of marijuana and using and carrying a firearm during a drug
trafficking crime, and on one count of unlawful use and carrying of a firearm
during a drug trafficking crime. See 18 U.S.C. § 924(c); 21 U.S.C. §§ 841, 846.
Specifically, he argues that the district court erred when it adopted 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40933
presentence report (PSR) that attributed 15.42 kilograms of unseized
methamphetamine to him to determine his base offense level for the calculation
of an advisory range sentence under the sentencing guidelines. Villegas asserts
that the evidence regarding the amount of methamphetamine involved in the
conspiracy did not support the court’s conclusion that a home invasion by
Villegas and his co-conspirators resulted in the theft of 34 bags of
methamphetamine; that each of the 34 bags was the same size, weight, and
purity; that each bag of the methamphetamine had an approximate value of
$10,000; and that each bag weighed approximately one pound (.454 kilograms).
In determining the quantity of methamphetamine taken in the home
invasion, the probation officer preparing the presentence report relied upon
reports prepared in the investigation of the conspiracy. Before sentencing, the
Government provided the district court and Villegas with copies of the debriefing
reports from investigator interviews with co-conspirators. The facts set forth in
the debriefing reports support the district court’s findings regarding the number
of bags, their consistent size and weight, and their approximate value. See
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Villegas’s co-
conspirators told investigators that they took an estimated 34 packets of
methamphetamine during a home invasion. Each member received two to three
packets for his participation. A co-conspirator sold the packets and returned the
profits to the others for their participation in the home invasion. One member
received three packets of methamphetamine for his participation, which his co-
conspirator sold, and for which the co-conspirator returned $30,000. A drug
enforcement agent indicated that, in his two years of experience, he had bought
pound quantities of methamphetamine for approximately $9,500-$13,000. From
this information, the district court extrapolated the quantity of unseized
methamphetamine from the information in the reports. See id. at 246-49(approving the use of extrapolation to estimate the attributable quantity of
narcotics); see also Anderson v. City of Bessemer, 470 U.S. 564, 570 (1985) (noting
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No. 08-40933
that where there are “two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.”). In light of the evidence, the
district court’s conclusion regarding the quantity of methamphetamine is
plausible.
Villegas adduced no testimony or other evidence at sentencing to counter
the facts stated in the PSR. See United States v. Smith, 528 F.3d 423, 425 (5th
Cir. 2008). His conclusory assertions that the evidence was unreliable does not
demonstrate that the information contained in the PSR was materially untrue.
See id. Accordingly, we AFFIRM the decision of the district court.
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