United States v. De La Pena , 220 F. App'x 247 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-50450
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER DE LA PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-224-2
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Javier De La Pena appeals the 92-month sentence imposed by
the district court, on remand, following his jury-trial
conviction for possession of and importation of cocaine. He
argues that the district court’s consideration of facts that were
neither admitted nor proven to a jury in calculating his
guidelines sentence range violated the Sixth Amendment under
United States v. Booker, 543 U.S. 220 (2005). As De La Pena was
sentenced under an advisory guidelines scheme following the
issuance of Booker, this argument is without merit. See 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this opinion should not be published and is not precedent except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.
No. 06-50450
-2-
States v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied,
126 S. Ct. 2884 (2006).
De La Pena also argues that the district court’s drug
quantity determination was erroneous because it was not supported
by a preponderance of the evidence. The district court adopted
the factual findings and conclusions set forth in the presentence
report (PSR). As the facts set forth in the PSR showed that De
La Pena knew exactly where to go to purchase cocaine and that he
did so, the inference that he bought more than he was
commissioned to buy was permissible. See United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Other than his own
self-serving assertions, De La Pena offered no evidence to rebut
the findings contained in the PSR. De La Pena has thus failed to
show that the district court clearly erred in determining drug
quantity for sentencing purposes. See United States v. De
Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005), cert. denied,
126 S. Ct. 1022 (2006); United States v. Londono, 285 F.3d 348,
355 (5th Cir. 2002); United States v. Posada-Rios, 158 F.3d 832,
878 (5th Cir. 1998).
AFFIRMED.