United States v. Ayala

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2007
Charles R. Fulbruge III
Clerk
No. 05-20555
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS LORENZO AYALA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No.4:02-CR-36-3
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jesus Lorenzo Ayala appeals the sentence imposed following his
resentencing for his guilty plea conviction of aiding and abetting
in the possession with intent to distribute more than 100 kilograms
of marijuana and conspiracy to possess with intent to distribute
more than 100 kilograms of marijuana. Ayala was sentenced to a
term of imprisonment of 108 months on each count, to be served
concurrently and to be followed by a five-year term of supervised
release.
*
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this opinion should not be published and is not precedent except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. 05-20555
-2-
Ayala argues that the district court’s finding of relevant
conduct by a mere preponderance of the evidence was a violation of
his rights under the Sixth Amendment and the Due Process Clause of
the Fifth Amendment.1 This court has determined that the district
court can make all factual findings relevant to a post-Booker2
guidelines sentence based on a preponderance of the evidence.
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). Although Mares spoke only in terms of the
Sixth Amendment, it implicitly rejected Ayala’s Fifth Amendment
claim as well. And our sister circuits having addressed that claim
have rejected it. See United States v. Malouf, 466 F.3d 21, 27
(1st Cir. 2006); United States v. Garcia-Gonon, 433 F.3d 587, 593
(8th Cir. 2006); United States v. Vaugh, 430 F.3d 518, 525 (2d Cir.
2005). The district court did not err in employing the
preponderance of the evidence standard.
Ayala further argues that, even under the preponderance of the
evidence standard, the proof of drug quantity was insufficient
because Blevins could not testify as to the amount of marijuana
transported.
Post-Booker, this court continues to review the district
court’s interpretation and application of the Guidelines de novo
and its factual findings for clear error. United States v.
1
Generously construed, his first appeal to this court
raised this issue, preserving it for consideration here. See
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).
2
United States v. Booker, 543 U.S. 220 (2005).
No. 05-20555
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Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126
S. Ct. 268 (2005). In the context of determining drug quantity for
sentencing purposes, a district court may consider estimates if
they are reasonable and based on reliable evidence. United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). The district
court used the extrapolation method in inferring that Ayala
transported the same amount of drugs on each trip he made. If this
method is employed, there must be “sufficient reliable evidence
that the multiplier used by the district court . . . is
representative of the [amount of drugs involved] . . . on each
trip.” United States v. Cabrera, 288 F.3d 163, 170-73 (5th Cir.
2002).
There was sufficient reliable evidence from Blevins’s
testimony and information about the truck for the district court to
find that Ayala transported and unloaded at least 384 kilograms of
marijuana on at least eight occasions in addition to transporting
the 384.7 kilogram load that resulted in his arrest. Thus, the
district court did not clearly err in holding Ayala responsible for
3,461.9 kilograms of marijuana.
Ayala argues that the district court erred in not decreasing
his offense level based on his being a minor participant in the
offense. In his initial objections to the PSR, Ayala argued that
he should receive a two-level reduction of his offense level based
on his minor role in the offense, and the district court overruled
No. 05-20555
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his objections. Ayala did not appeal that ruling in the initial
appeal.
Upon remand for resentencing, “[a]ll other issues not arising
out of this court’s ruling and not raised before the appeals court,
which could have been brought in the original appeal, are not
proper for reconsideration by the district court below.” United
States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). The only
exceptions to this rule are: “(1) The evidence at a subsequent
trial is substantially different; (2) there has been an intervening
change of law by a controlling authority; and (3) the earlier
decision is clearly erroneous and would work a manifest injustice.”
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).
Ayala failed to raise this argument in his initial appeal, and
he has not shown that his argument falls within any exception to
the limited remand rule. This argument is not subject to review.
Id.AFFIRMED.