United States v. Jose Rodriguez , 477 F. App'x 295 ( 2012 )

Case: 11-40986 Document: 00512003204 Page: 1 Date Filed: 09/28/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2012
No. 11-40986
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ALBERTO RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-1637-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Alberto Rodriguez pleaded guilty to possession with intent to
distribute approximately 87 kilograms of marijuana. He appeals his sentence,
arguing that the district court clearly erred by applying a 5% reduction for
packaging to the gross weight of marijuana, instead of the 8.2% reduction he
requested.
This court reviews the district court’s application and interpretation of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40986 Document: 00512003204 Page: 2 Date Filed: 09/28/2012
No. 11-40986
States v. Goluba, 672 F.3d 304, 306 (5th Cir. 2012). A district court’s finding on
drug quantity is a factual finding reviewed for clear error. United States v.
Davis, 76 F.3d 82, 84 (5th Cir. 1996). “District courts enjoy wide discretion in
determining which evidence to consider and to credit for sentencing purposes.”
United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir.), cert. denied, 132
S. Ct. 2759 (2012). If the district court’s assessment of the evidence is plausible
in light of the record as a whole, this court may not reverse even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. See Davis, 76 F.3d at 84.
Here, the district court adopted the drug quantity set forth in the
presentence report (PSR) after having considered the gross weight of the drugs,
the number of bundles involved, and the type of wrapping used. Rodriguez
presented no evidence rebutting the drug quantity set forth in the PSR. Given
the absence of contrary evidence concerning the proper drug quantity, the
district court was free to adopt the PSR’s estimated weight and use that weight
for sentencing purposes. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th
Cir. 1994). The district court’s decision to apply a 5% reduction to the gross
weight of the marijuana to account for the packaging was plausible in light of
the record. See Davis, 76 F.3d at 84. Accordingly, the judgment is AFFIRMED.
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