United States v. Huerta ( 2006 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-10793
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOSVAN HUERTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-192-1
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Yosvan Huerta appeals the sentence imposed following his
guilty plea conviction of possession of a controlled substance
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B)(ii)(II), and unlawful possession of a firearm in
furtherance of a drug trafficking offense and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c) and 2.
Huerta argues that the district court erred when it
determined that seized cash was drug proceeds attributable to
*
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this opinion should not be published and is not precedent except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. 05-10793
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Huerta and converted the cash into an equivalent amount of
methamphetamine, when it denied Huerta an acceptance of
responsibility reduction, when it included drugs other than
cocaine to calculate Huerta’s base offense level in violation of
United States v. Booker, 543 U.S. 220 (2005), and when it applied
Booker retroactively.
The record establishes that the cash that was seized was
stored in a lockbox in Huerta’s home, with Huerta’s girlfriend
having access to the cash, which she was readily able to move at
Huerta’s direction. Also, the record indicates that Huerta had
no apparent source of cash other than drug trafficking, Huerta
asserted that he had not previously engaged in cocaine
trafficking, from the amount of cocaine seized it appeared that
Huerta had not sold the cocaine that he had only recently
obtained, Huerta admitted that he had previously dealt
methamphetamine, he admitted that the methamphetamine that was
found in his home belonged to him, and his girlfriend who knew
where Huerta kept cash, drugs, and weapons, reported to the
police that Huerta was a methamphetamine dealer. These facts
indicate that the district court’s findings that the cash
belonged to Huerta and were the proceeds of Huerta’s
methamphetamine distribution were plausible in light of the
record. See United States v. Johnston, 127 F.3d 380, 403 (5th
Cir. 1997). Moreover, the district court did not commit error
under the Guidelines when it based Huerta’s sentence on a type
No. 05-10793
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and quantity of drug not specified in the count of conviction.
See U.S.S.G. § 2D1.1, comment. (n.12). The district court
therefore did not clearly err in its determination of Huerta’s
offense level. See United States v. Villanueva, 408 F.3d 193,
203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005).
Huerta also argues that the district court erred when it
denied him an acceptance of responsibility adjustment pursuant to
U.S.S.G. § 3E1.1. The ruling denying the acceptance of
responsibility adjustment was made after the district court
determined that the cash was attributable to Huerta and should be
converted into methamphetamine. These determinations of relevant
conduct were plausible in light of the record. Because a
defendant who “falsely denies” relevant conduct “has acted in a
manner inconsistent with acceptance of responsibility,” § 3E1.1,
comment. (n.1), the district court’s ruling, based upon Huerta’s
relevant conduct objections, is not without foundation. See
United States v. Pierce, 237 F.3d 693, 695 (5th Cir. 2001);
United States v. Brace, 145 F.3d 247, 264 (5th Cir. 1998) (en
banc). The district court therefore did not clearly err when it
denied Huerta an acceptance of responsibility adjustment. See
United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996).
Huerta also argues that the district court erred when it
determined his relevant conduct because under Booker the district
court’s sentencing determinations are limited to facts that were
either determined by a jury or admitted by a defendant. This
No. 05-10793
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argument is without merit. Post-Booker, the district court
sentenced Huerta under advisory Guidelines. Booker, 543 U.S. at
245-46. Under the advisory Guidelines scheme mandated by Booker,
the Sixth Amendment does not impede a sentencing judge from
finding all facts relevant to sentencing. See United States v.
Mares, 402 F.3d 511, 517-19 (5th Cir.), cert. denied, 126 S. Ct.
43 (2005)).
Finally, Huerta argues that the district court erred when it
applied Booker retroactively. This argument is also without
merit. See United States v. Scroggins, 411 F.3d 572, 575-76 (5th
Cir. 2005) (rejecting argument that retroactive application of
advisory guidelines violated ex post facto principles); United
States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005) (applying
the remedial opinion of Booker to a sentencing hearing where the
underlying offense was committed pre-Booker does not violate ex
post facto or due process principles).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.