United States v. de la Hoz ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-20634
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FEDERICO CASTANEDA DE LA HOZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-23-ALL
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On March 15, 2005, Federico Castaneda de la Hoz (Castaneda)
pleaded guilty to possession with intent to distribute 100 grams
or more of heroin and importation of 100 grams or more of heroin.
21 U.S.C. § 841, 952, 960. The district court sentenced
Castaneda to 78 months of imprisonment, to be followed by five
years of supervised release, and ordered Castaneda to pay $200 in
special assessments.
Castaneda argues that the district court erred in
considering the drugs involved in his 2003 drug smuggling in
*
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this opinion should not be published and is not precedent except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. 05-20634
-2-
calculating his base offense level. Specifically, Castaneda
argues that his drug smuggling in 2003 conduct was too remote in
time and different from his 2004 offense to be relevant conduct
under the Guidelines and that there was insufficient evidence to
support the inference that his drug smuggling in 2003 involved
heroin rather than cocaine.
Under the common scheme approach to relevant conduct,
Castaneda’s conduct in 2003 was properly included in the offense
level calculation because the modus operandi of each trip was
substantially similar, and the two trips involved common
accomplices. See U.S.S.G. § 1B1.3(a)(2); id., comment. (n.9(A)).
Notwithstanding the time interval between the trips, the
similarities between them makes the district court’s finding that
the drug smuggling in 2003 was relevant conduct under the
Guidelines “plausible in light of the record as a whole.” See
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
On the other hand, the Government had the burden of proving
by a preponderance of the evidence the facts necessary to support
the two level adjustment in Castaneda’s offense level, and “there
must be an acceptable evidentiary basis for the court’s
factfindings at the sentencing hearing.” United States v. Ayala,
47 F.3d 688, 690 (5th Cir. 1995); see also United States v.
Mares, 402 F.3d 511, 518 (5th Cir.) (same), cert. denied, 126 S.
Ct. 43 (2005). By treating the 35 pellets Castaneda smuggled in
2003 as containing heroin, Castaneda’s offense level was two
No. 05-20634
-3-
levels higher than it would have been had the district court
treated them as containing cocaine. See U.S.S.G. § 2D1.1(c)
(Drug Equivalency Table). Because the Government failed to prove
by a preponderance of the evidence that the drug pellets
Castaneda smuggled in 2003 contained heroin rather than cocaine,
the district court erred in so finding. Nevertheless, Castaneda
concedes that he should be held accountable for at least 350
grams of cocaine, and upon remand the district court should
recalculate his base offense level by treating the 2003 smuggling
trip as involving 350 grams of cocaine rather than heroin.
Castaneda also challenges the statutes under which he was
convicted, arguing that 21 U.S.C. §§ 841, 952, and 960 are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). In United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2000), this court rejected the argument that Apprendi
rendered § 841 facially unconstitutional. 238 F.3d at 582.
Castaneda’s challenge to the constitutionality of §§ 952 and 960
on the same grounds also lacks merit in light of the holding in
Slaughter. See Slaughter, 238 F.3d at 582. Castaneda concedes
that his attack on the constitutionality of §§ 841, 952, and 960
is meritless in light of circuit precedent, but he raises the
argument to preserve it for further review.
For the foregoing reasons, vacate Castaneda’s sentence and
remand for resentencing.
No. 05-20634
-4-
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.