United States v. Monarrez-Lozano , 203 F. App'x 585 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-50842
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL FERNANDO MONARREZ-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:01-CR-1900-1
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Miguel Fernando Monarrez-Lozano (Monarrez) appeals his most
recent sentence following his jury-trial convictions for
conspiracy to import cocaine, importation of cocaine, conspiracy
to possess cocaine with intent to distribute, and possession of
cocaine with intent to distribute. He argues that, under United
States v. Booker, 543 U.S. 220 (2005), his Sixth Amendment rights
were violated when the district court sentenced him based on 3.9
kilograms of cocaine. He avers that the amount of drugs should
*
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this opinion should not be published and is not precedent except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. 05-50842
-2-
have been limited to the amount found by the jury, i.e., 500
grams or more of cocaine. Following Booker, this court still
reviews the district court’s application of the Sentencing
Guidelines de novo and reviews factual findings for clear error.
See United States v. Villegas, 404 F.3d 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).
Monarrez’s argument is untenable. Post-Booker “[t]he
sentencing judge is entitled to find by a preponderance of the
evidence all the facts relevant to the determination of a
Guideline sentencing range and all facts relevant to the
determination of a non-Guidelines sentence.” United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43(2005).
Moreover, the parties stipulated that the amount of drugs
involved was 3.9 kilograms of cocaine. That stipulated amount
was recited in the presentence report. Monarrez does not dispute
that he entered into the stipulation. Given that the amount was
stipulated to and because Monarrez offered no evidence to rebut
the presentence report’s reliance on that amount in calculating
his offense level, the district court did not clearly err in its
finding of the drug quantity. See United States v. Caldwell,
448 F.3d 287, 291 n.1 (5th Cir. 2006); see also United States v.
Holmes, 406 F.3d 337, 364 (5th Cir.), cert. denied, 126 S. Ct.
375 (2005). The judgment of the district court is AFFIRMED.