United States v. Estrada-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-51147
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PEDRO ESTRADA PEREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas, El Paso
05-CR-852-ALL
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Pedro Estrada Perez (Estrada) challenges his sentence
following his plea of guilty to charges of importation of marijuana
and possession with intent to distribute marijuana. The only
significant issue in the appeal is whether the district court
clearly erred in concluding that the evidence supports the finding
that Estrada was accountable for 142.86 kilograms of marijuana for
*
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opinion should not be published and is not precedent except under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.
sentencing purposes. We conclude that the evidence was sufficient
for the court to make this finding and affirm the sentence.
I.
A.
In March 2005, Estrada attempted to enter the United States
from Mexico at the Bridge of the Americas Port of Entry in El Paso,
Texas. He was driving a 1989 Ford Bronco with Mexican plates. At
primary inspection, Estrada said that the vehicle belonged to him.
The Customs and Border Protection officer noted that the vehicle
was clean, did not appear to have ever been used, and that the back
seat was abnormally hard. The vehicle was sent to secondary
inspection, where Estrada again said that he owned the vehicle and
that he was going shopping at Wal-Mart.
A dog alerted to the rear seat, and subsequent inspection
revealed 82 bundles of marijuana. The marijuana was located under
the back seat and rear quarter panels and weighed 105 pounds or
47.64 kilograms.
After being given his Miranda warnings, Estrada said that he
had been hired a couple of weeks before by two people he did not
know to transport drugs in the vehicle into the United States. He
said that this was the third time that he had crossed the border in
the same vehicle with narcotics. He said that each time he
crossed, he left the vehicle in the parking lot of the Star Western
Wear Clothing Store in downtown El Paso. He was instructed to
leave the keys in the glove compartment and return to Mexico. He
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was paid $700 each time he transported drugs across the border in
the vehicle.
Based on the statements made by Estrada at the time of his
arrest, the probation officer concluded that it was reasonable to
infer that he was involved in the crossing of two previous loads
which were equal to the load of marijuana seized based on (1) the
payment of the same fee received for each of the previous
crossings, (2) the proximity of each crossing, (3) the same vehicle
was utilized for each of the previous crossings and (4) the same
individual hired the Defendant for all three crossings. The
probation officer recommended holding Estrada accountable for the
47.62 kilograms of marijuana seized and two additional loads of the
same amount, for a total of 142.86 kilograms of marijuana. This
gave him a base offense level of 26. The probation officer
recommended that Estrada’s offense level be reduced by two points
for providing complete information to the government, and three
additional points for acceptance of responsibility, but no
reduction was recommended for a mitigating role in the offense.
Estrada objected to the base offense level calculation,
arguing that it was pure speculation as to the amount of marijuana
transported on the two previous trips and that it was unknown
whether narcotics were concealed within the vehicle during prior
crossings.
Estrada also objected to the probation officer’s failure to
recommend a two-level reduction for minor role pursuant to U.S.S.G
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§ 3B1.2(b). The district court denied both objections and
sentenced Estrada at the bottom of the guideline range, 37 months.
Estrada filed a timely appeal.
Estrada was sentenced after United States v. Booker, 543 U.S.
220 (2005). Post-Booker, this court continues to review the
district court’s interpretation and application of the Guidelines
de novo and its factual findings with respect to sentencing for
clear error. United States v. Villanueva, 408 F.3d 193, 203 & n.9
(5th Cir.), cert. denied, 126 S. Ct. 268 (2005); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). A finding of fact is
not clearly erroneous “[a]s long as it is plausible in light of the
record read as a whole.” United States v. Morris, 46 F.3d 410, 419
(5th Cir. 1995).
II.
A.
Estrada argues first that the quantity of drugs used to
determine his base offense level was calculated on speculative
extrapolation and not proved by a preponderance of reliable
evidence. He contends that the probation officer’s drug-quantity
assertions lacked an evidentiary basis and reliability for the 142-
kilogram figure. He contends that no testimony established an
evidentiary basis for the size or fact of other loads. He argues
that his admission that he had been paid twice before to drive the
truck across the border was not sufficient to establish those facts
and that the probation officer improperly used that admission to
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speculate on the quantity of marijuana.
The facts listed by the probation officer to justify the
attribution of 142.86 kilograms of marijuana to Estrada (the fact
that Estrada received the same fee for each crossing; the crossings
were at the same place, with the same vehicle, with the same
individual hiring him), were clearly sufficient to support the
conclusion that Estrada’s two prior trips were part of the same
course of conduct under United States sentencing guideline § 1B1.3,
the relevant conduct guideline. See United States v. Shonubi, 998
F.2d 84, 89 (2d Cir. 1993).
However, that does not end the inquiry. In making factual
findings, the district judge may consider any information that has
“sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a), p.s.; United States v. Betancourt,
422 F.3d 240, 247 (5th Cir. 2005). The district court must make
its factual findings at sentencing by a preponderance of evidence
which is both relevant and sufficiently reliable. Betancourt, 422
F.3d at 247.
In determining drug quantity for sentencing purposes, a
district court may approximate the amount so long as the estimates
are reasonable and based on reliable evidence. Id. at 246.
Types and quantities of drugs not specified in
the count of conviction may be considered in
determining the offense level. . . . Where
there is no drug seizure or the amount seized
does not reflect the scale of the offense, the
court shall approximate the quantity of the
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controlled substance. In making this
determination, the court may consider, for
example, the price generally obtained for the
controlled substance, financial or other
records, similar transactions in controlled
substances by the defendant, and the size or
capability of any laboratory involved.
U.S.S.G. § 2D1.1, cmt., n.12.
The district court in this case used an extrapolation
methodology to determine drug quantity. Based on the facts recited
in the PSR the court inferred that Estrada probably transported the
same quantity of drugs on each of the three occasions he crossed
the border with drugs in this vehicle.
Estrada relies on United States v. Shonubi, in which the court
concluded that the extrapolation used by the district court was
unreliable. 998 F.2d at 89. Shonubi was arrested at JFK airport
after a visit to Nigeria and was found to be carrying 427.4 grams
of heroin. Id. at 86. At his trial, the government produced
evidence that he had made between five and eight other trips to
Nigeria. The district court found that he had made eight trips,
that he had imported heroin on each occasion, and multiplied the
number of trips by 427.4 grams. Id. at 87. Shonubi argued that
this was error because the government had failed to prove how much
heroin he had smuggled during each of his trips. Id. at 88.
The Second Circuit agreed with the district court that the
prior trips were part of the same course of conduct as the offense
of conviction, and that it might be inferred that he had imported
heroin during these prior trips. Id. at 89. However, the court
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noted that the government must still prove drug quantity by a
preponderance of the evidence and that there was no proof that
Shonubi had imported 427.4 grams of heroin on each of his seven
other trips. Id.
In United States v. Cabrera, 288 F.3d 163, 170-73 (5th Cir.
2002), the district court used the extrapolation method to estimate
the number of immigrants smuggled by the defendant. The agents
were aware of the number of immigrants smuggled on three of the 15
trips, and they assumed that at least two immigrants were smuggled
on each occasion. This assumption was based on the fact that the
smuggling scheme was designed to use children to aid in the
crossing, taking advantage of the Border Patrol’s policy of
leniency toward families with young children. Id. at 172. This
court concluded that “there is sufficient reliable evidence that
the multiplier used by the district court in the instant case is
reasonably representative of the number of immigrants smuggled on
each trip.” Id. We specifically distinguished Shonubi. Id.
Although these cases are somewhat instructive, a determination
of whether the evidence is sufficient obviously depends upon the
facts of each case. Our review of this record leads us to conclude
that the evidence is sufficient to support the district court’s
finding. First, the same supplier hired Estrada for all three drug
runs and this supplier paid Estrada $700 to transport each load.
The payment of the same fee suggests that Estrada performed the
same service. Second, the same vehicle was used and the cargo
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area where the marijuana was found was packed so tight that the
rear seat was hard to the touch. There is little reason to believe
that the compartment established for smuggling the marijuana would
be only partially filled. The defendant argues that it is just as
reasonable to assume that the supplier sent Estrada across the
border without drugs on a dry run to test the courier and let the
border inspectors get accustomed to seeing the defendant. The fact
that the supplier put the Bronco in Estrada’s name indicates a
firmly established relationship between the two persons that had
advanced past any trial period. Also, the argument that the
earlier two crossings could have been dry runs is contradicted by
Estrada’s admission that he transported drugs on the two previous
trips. In addition, as the government argued, it is doubtful that
a supplier would pay a courier to make dry runs.
We conclude therefore that the district court did not clearly
err in finding that the evidence was sufficient to establish the
142.86 kilogram figure.
B.
Estrada argues that the district court erred by denying him a
two-level reduction for minor participant. The determination of a
defendant's role in an offense is factual in nature, subject to
review for clear error. United States v. Palomo, 998 F.2d 253, 257
(5th Cir.), cert. denied,114 S.Ct. 358, 126 L. Ed. 2d 322 (1993). He
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contends that he was a courier whose only role was to drive the
Bronco from the Mexican side to the United States and that he was
paid a fixed, relatively low fee. This argument is without merit.
In U.S. v. Buenrostro, we held that the district court had not
committed clear error in refusing to award a § 3B1.2 reduction in
a case involving a one-time courier of marijuana who performed the
task after meeting previously unknown individuals in a bar. See
868 F.2d 135, 137-38 (5th Cir. 1989).
Estrada has failed to sustain his burden of demonstrating that
he was entitled to a mitigating-role adjustment. See United States
v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). The record
indicates that Estrada played an integral role in transporting 105
pounds of marijuana (47.62 kilograms) hidden in a vehicle and that
he pleaded guilty to substantive counts of possessing the marijuana
with an intent to distribute and to importing marijuana. The
persons hiring him trusted him enough to register the vehicle in
his name. The district court did not clearly err in finding that
Estrada was not entitled to a downward adjustment for a mitigating
role in the offense.
For the reasons states above we AFFIRM Estrada’s sentence.
AFFIRMED.
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