United States v. Orduno ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11585
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS JOSE ORDUNO, also known as Jesse Orduno,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:00-CR-12-2
October 21, 2002
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Jesus Jose Orduno appeals his guilty-plea conviction and
sentence for: (1) conspiring to distribute, and to possess with the
intent to distribute, more than 100 kilograms of marihuana, in
violation of 21 U.S.C. § 846, and (2) possessing with the intent to
distribute, and aiding and abetting possession with the intent to
distribute, more than 100 kilograms of marihuana, in violation of
*
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opinion should not be published and is not precedent except under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.
21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2.
Orduno first contends that 21 U.S.C. § 841(b) is facially
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). This argument is foreclosed by circuit precedent. See
Unites States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),
cert. denied, 532 U.S. 1045 (2001); United States v. Fort, 248 F.3d
475, 482 (5th Cir.), cert. denied, 122 S.Ct. 405 (2001).
Orduno next asserts that his sentence was unconstitutional
under Apprendi because the applicable guideline sentencing range
was increased based on facts (obstruction of justice, being an
organizer or leader in the offense, and amount by which the
marihuana involved exceeded 100 kilograms) not alleged in the
indictment or proved beyond a reasonable doubt. The record shows
that Orduno’s sentence did not exceed the statutory maximum
applicable to the offenses alleged in his indictment. See 21
U.S.C. § 841(b)(1)(B)(vii), 846; 18 U.S.C. §§ 2, 3559(a)(2),
3571(b)(1) and (3), 3583(b)(1). The indictment allegation of “in
excess of 100 kilograms or more of . . . marihuana” sufficed to
invoke the 40 year maximum of section 841(b)(1)(B)(vii). United
States v. Moreci, 283 F.3d 293, 299 (5th Cir. 2002). Apprendi does
not apply to sentence enhancements that do not yield a sentence
beyond the statutory maximum. See United States v. Keith, 230 F.3d
784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182 (2001);
United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert.
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denied, 531 U.S. 1177 (2001). Orduno’s Apprendi argument is
therefore without merit.
Finally, Orduno argues that there was an insufficient factual
basis to attribute 6,189.37 kilograms of marihuana to him for
sentencing purposes. We cannot say, however, that the district
court clearly erred in determining the drug quantity, as the
determination was plausible in light of the record as a whole. See
United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001); United
States v. Lowder, 148 F.3d 548, 553 (5th Cir. 1998).
“As a defendant challenging the findings of the PSR, [Orduno]
bears the burden of showing that the information in the PSR ‘cannot
be relied on because it is materially untrue, inaccurate, or
unreliable.’” United States v. Londono, 285 F.3d 348, 354 (5th Cir.
2002). As part of the agreed factual resume, the parties
stipulated that “on at least eight occasions,” Orduno transported
quantities of marihuana in moving boxes surrounded by recently
purchased furniture and located in rented moving trucks and that,
on one such occasion, 900 pounds of marihuana were involved. At
sentencing, Federal Bureau of Investigation Special Agent Jerry Nau
testified that based on his extensive analysis of cell phone
records, moving truck rentals, furniture purchases, and information
obtained from co-defendants and other sources, he was able to
determine that Orduno made seventeen trips to transport marihuana
and that all but two involved approximately 1,000 pounds of
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marihuana. Orduno’s testimony claiming responsibility for a lesser
quantity of drugs was insufficient to require the district court to
conclude that Agent Nau’s testimony was materially untrue,
inaccurate, or unreliable. See United States v. Angulo, 927 F.2d
202, 205 (5th Cir. 1991).
Furthermore, there is no merit to Orduno’s suggestion that a
district court should not extrapolate from concrete evidence to
estimate a drug quantity. In United States v. Cabrera, 288 F.3d
163, 171-73 (5th Cir. 2002), this court approved the use of a
“multiplier” estimate, in which a known quantity involved in a
particular occurrence is extrapolated to other occurrences, to make
a sentencing determination regarding the number of immigrants
smuggled on various trips. As in Cabrera, 288 F.3d at 172, the
evidence adduced in the instant case shows that the multiplier
estimate was reasonably representative of the amount of marihuana
sought to be determined.
The judgment of the district court is AFFIRMED.
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