United States v. Garcia ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-10772
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL CARLOS GARCIA,
also known as El Patito,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-168-10
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Miguel Carlos Garcia appeals his 70-month prison sentence
for his guilty–plea conviction of conspiracy to distribute
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
Garcia argues that the district court clearly erred in
approximating that, for guideline purposes, he was responsible
for five kilograms of cocaine. A sentence imposed in the advent
of United States v. Booker, 543 U.S. 220 (2005), will generally
be affirmed if it is “reasonable.” United States v. Mares, 402
F.3d 511, 517-20 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
*
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this opinion should not be published and is not precedent except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. 05-10772
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After Booker, we still review the district court’s application of
the Guidelines de novo and factual findings for clear error.
See United States v. Villegas, 404 F.3de 355, 359 (5th Cir.
2005); United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005).
“Where there is no drug seizure . . ., the [district] court
shall approximate the quantity of the controlled substance”
attributable to the defendant. U.S.S.G. § 2D1.1, comment.
(n.12). In Garcia’s case, the Factual Resume for his plea
agreement and the information contained in his Presentence Report
(PSR) supported the district court’s determination that Garcia
was responsible for five kilograms of cocaine. The PSR reflected
that other members of the conspiracy often transported even
larger quantities of cocaine than five kilograms. Moreover,
Garcia and coconspirator Leopoldo Torres-Diaz went to great
lengths to arrange for Garcia to drive a load of cocaine from
Mexico into this country: Torres-Diaz made several telephone
calls to his supplier in Mexico, traveled from the Dallas area to
the Houston area to meet personally with Garcia, arranged for
Garcia to travel to California to pick up a BMW sedan to use as
the load vehicle, and had Garcia drive the BMW for more than a
day back to Texas in order to pick up a cocaine shipment arriving
from Mexico. This process took nine days, during which Torres-
Diaz was apparently paying all of Garcia’s expenses. Although
this shipment failed, the district court did not clearly err in
determining that these elaborate and expensive plans were
unlikely to involve less than a multi-kilogram quantity of
No. 05-10772
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cocaine. United States v. Torres, 114 F.3d 520, 527 (5th Cir.
1997).
The conviction and sentence are AFFIRMED.