United States v. Maldonado ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2004
Charles R. Fulbruge III
Clerk
No. 04-10177
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN CADENA MURIETTA MALDONADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:02-CR-42-2-C
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Joaquin Cadena Murietta Maldonado appeals the sentence
imposed following his guilty-plea conviction for conspiracy to
import more than five kilograms of cocaine and more than 1000
kilograms of marijuana. He argues that the district court
clearly erred in calculating the drug quantities attributable to
him under the Sentencing Guidelines. Because he has not shown
that the information in the Presentence Report (PSR) concerning
the drug quantities involved in the offense was “materially
*
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this opinion should not be published and is not precedent except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. 04-10177
-2-
untrue, inaccurate, or unreliable,” he has not shown that the
district court clearly erred in adopting the information in the
PSR concerning the drug quantities. United States v. Puig-
Infante, 19 F.3d 929, 943 (5th Cir. 1994); United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991). His argument that the
district court erred in relying on the uncorroborated hearsay
statements of his coconspirators lacks merit. See United States
v. Cooper, 274 F.3d 230, 240 (5th Cir. 2001). He failed to show
that he did not intend or was not reasonably capable of
purchasing 50 kilograms of cocaine in the Florida transaction;
therefore, the district court did not clearly err in including
this quantity in the drug calculations for sentencing purposes.
See United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996).
For the first time on appal, Murietta Maldonado argues that
the drug quantities should not have been aggregated because the
Government did not establish that they were all in furtherance of
the same conspiracy. This claim is reviewed for plain error.
United States v. Olano, 507 U.S. 725, 731-37 (1993). He was held
responsible for the marijuana and cocaine that he imported,
bought, or sold during the course of the conspiracy as alleged in
the indictment. He stipulated that he was involved in a single
conspiracy which continued during the period alleged in the
indictment. He did not establish that the district court erred
in finding that he should be held responsible for the drug
No. 04-10177
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quantities imported throughout the ongoing conspiracy. See
United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003).
Murietta Maldonado has filed a letter pursuant to FED.
R. APP. P. 28(j) calling our attention to the Supreme Court’s
recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).
We have held that Blakely does not apply to the United States
Sentencing Guidelines. United States v. Pineiro, No. 03-30437,
2004 WL 1543170 (5th Cir. July 12, 2004), petition for cert.
filed, (U.S. July 14, 2004). He acknowledges that his argument
is foreclosed by Pineiro, but he states that he is raising this
issue to preserve it for possible Supreme Court review. A panel
of this court cannot overrule a prior panel’s decision in the
absence of an intervening contrary or superseding decision by
this court sitting en banc or by the United States Supreme Court.
United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002). Murietta Maldonado’s motion requesting that the court
call for supplemental briefing regarding the significance of
Blakely is denied.
AFFIRMED; MOTION DENIED.