United States v. Amaya ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-10833
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO AMAYA, also known as Alex Amaya, also
known as Gordo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-251-2
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Alejandro Amaya appeals the sentence imposed in connection
with his guilty-plea conviction for conspiring to possess with
intent to distribute and to distribute more than five kilograms
of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Amaya
argues that the district court erred in calculating the drug
quantities for which he was held responsible. Amaya also argues
that the district court erred in denying him a two-level
reduction for a minor role in the drug conspiracy.
*
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this opinion should not be published and is not precedent except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. 05-10833
-2-
Defense counsel’s statements at the sentencing hearing did
not clearly abandon Amaya’s objections to the drug quantity
calculation by the presentence report (PSR). We review only the
inclusion of the 30-kilogram amount in the drug quantity
calculation, however, because the base offense level of 34 was
error only if the 30-kilogram amount was improperly included,
and, if it was not error, any error concerning the other amounts
included in the drug quantity calculation was harmless. See
United States v. Solis, 299 F.3d 420, 457 n.135 (5th Cir. 2002).
We review all of the arguments made by Amaya in connection with
the 30-kilogram amount for plain error. See United States v.
Ocana, 204 F.3d 585, 589 (5th Cir. 2000); United States v. Olano,
507 U.S. 725, 731-37 (1993).
We have held that it is the defendant’s burden to show “that
the information in the PSR relied on by the district court is
materially untrue,” United States v. Betancourt, 422 F.3d 240,
248 (5th Cir. 2005), and that, absent rebuttal evidence, the
district court is entitled to rely on the facts recited in the
PSR. United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1020 (2006). Amaya
stipulated in the factual resume for his plea that his conspiracy
with Christina Martinez and others “[s]pecifically” involved a
September 2003 meeting during which he offered to sell a
confidential informant 30 kilograms of cocaine. Because that
stipulation was recited in the PSR and because Amaya offered no
No. 05-10833
-3-
evidence to rebut the PSR’s inclusion of that amount in the drug
quantity calculation, any error by the district court in
including that amount in the drug quantity calculation was not
clear or obvious. See De Jesus-Batres, 410 F.3d at 164; Olano,
507 U.S. at 731-37; see also United States v. Lopez, 923 F.2d 47,
50 (5th Cir. 1991).
Amaya’s arguments that the 30-kilogram amount should not
have been counted because the meeting between him and a
confidential informant was not a conspiracy and because the mere
offer to sell drugs did not constitute a criminal act rely on the
premise that the meeting was not part of his conspiracy with
Martinez. As there was no plain error in attributing the 30-
kilogram meeting to the conspiracy between Amaya and Martinez,
these arguments are unavailing.
Amaya also argues that the 30-kilogram amount should not
have been included in the drug quantity calculation because
although he offered to sell the cocaine to a confidential
informant, there was no evidence that his offer was accepted by
the confidential informant. “In an offense involving an
agreement to sell a controlled substance, the agreed-upon
quantity of the controlled substance shall be used to determine
the offense level” unless, inter alia, the defendant establishes
that he did not intend to provide or purchase the agreed-upon
amount or was not reasonably capable of providing the agreed-upon
amount. U.S.S.G. § 2D1.1 comment. (n.12).
No. 05-10833
-4-
Amaya and the Government disagree on whether the phrase
“agreed-upon quantity” should include an offer to sell. Because
there is no controlling authority interpreting this phrase in the
comment to the guidelines, any error on the part of the trial
court could not be plain. See United States v. Dupre, 117 F.3d
810, 817 (5th Cir. 1997); United States v. Calverley, 37 F.3d
160, 165 (5th Cir. 1994) (en banc). Moreover, assuming, arguendo
only, that the phrase “agreed-upon quantity” does not include
offers to sell, the factual issue regarding whether Amaya’s offer
to sell cocaine was accepted by the confidential informant could
have been resolved during the sentencing hearing. “Questions of
fact capable of resolution upon proper objection at sentencing
can never constitute plain error.” Lopez, 923 F.2d at 50.
A district court’s determination of a defendant’s role in
the offense is a factual finding that this court reviews for
clear error. United States v. Villanueva, 408 F.3d 193, 203 &
n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005). Given the
facts set forth in the PSR about Amaya’s direct participation in
negotiating drug transactions involving multiple kilograms of
cocaine, the district court did not clearly err in concluding
that Amaya was not entitled to a reduction for a minor role in
the offense. See United States v. Atanda, 60 F.3d 196, 199 (5th
Cir. 1995).
AFFIRMED.