United States v. Corona-Plancar ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 17, 2008
No. 07-51287
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CAMILO GASPAR CORONA-PLANCAR, also known as Gilberto Vigas Zavala
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6: 07-CR-4-6
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Camilo Gaspar Corona-Plancar (Gaspar) appeals the sentence imposed
following his guilty-plea conviction for conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846. He
argues that the district court clearly erred in calculating the amount of drugs
attributable to him for sentencing purposes. Gaspar argues that there was no
reliable evidence that he and a codefendant agreed to undertake joint criminal
activity and thus there was no basis for the district court’s attribution to him 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should not be published and is not precedent except under the limited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.
No. 07-51287
more than 500 grams of methamphetamine. Gaspar asserts that the court erred
in applying United States Sentencing Guidelines § 1B1.3 and improperly based
its quantity conclusion on the unforseen conduct of a third party. We review the
district court’s drug quantity calculation for clear error. United States v.
Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000).
Gaspar concedes that he attempted to distribute 329.98 grams of
methamphetamine but claims that he should not be held responsible for the
269.32 grams of methamphetamine distributed by his codefendant. Section
1B1.3 “includes two primary grounds on which to hold defendant accountable for
conduct by others: subsection (a)(1)(B) for jointly undertaken criminal activity
and subsection (a)(1)(A) for ‘all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant.’”
United States v. Carreon, 11 F.3d 1225, 1237 (5th Cir. 1994). In the instant case,
Gaspar failed to rebut the finding in the PSR that his codefendant delivered
269.32 grams of methamphetamine for him. Accordingly, it would have been
plausible for the district court to find that the codefendant’s conduct was
“counseled, commanded, induced, procured, or willfully caused by [Gaspar].”
§ 1B1.3(a)(1)(A).
Moreover, there was sufficient evidence from which the district court could
have found that Gaspar personally was responsible for more than 500 grams of
methamphetamine. The facts admitted by Gaspar at rearraignment and elicited
at sentencing established that Gaspar delivered methamphetamine on multiple
instances over the course of the conspiracy in which he admitted he was a
participant. In the instant case, the district court could have inferred that
Gaspar was responsible for more than 500 grams of methamphetamine based on
extrapolation from the number of his deliveries and the amount of
methamphetamine seized from Gaspar during one delivery (i.e., 329.98). See
United States v. Medina, 161 F.3d 867, 876-77 (5th Cir. 1998).
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No. 07-51287
Finally, the district court was not clearly erroneous in concluding that
Gaspar and his codefendant participated in joint criminal activity and that his
codefendant’s possession of methamphetamine was reasonably foreseeable to
him. The uncontradicted evidence established that Gaspar and his codefendant
were responsible for distributing drugs on behalf of a drug organization that
Gaspar acknowledged was a conspiracy. Furthermore, the evidence suggested
that Gaspar and his codefendant possessed a collusive relationship consonant
with cooperation rather than independence. Thus, it was plausible from the
record as a whole for the district court to find that Gaspar should be held
accountable for the 269.32 grams of methamphetamine that was distributed by
his codefendant. See Burton v. United States, 237 F.3d 490, 500 (5th Cir. 2000).
The judgment of the district court is AFFIRMED.
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