United States v. Aragon-Tarango

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2009
No. 08-50740
No. 08-50827 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUMALDO GALINDO-ARAUJO;
CLEMENTE CAYETANO ARAGON-TARANGO,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
No. 4:08-CR-70-5
Before SMITH, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
*
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should not be published and is not precedent except under the limited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.
Nos. 08-50740, 08-50827
Rumaldo Galindo-Araujo and Clemente Aragon-Tarango appeal the sen-
tences imposed following their guilty plea convictions of aiding and abetting pos-
session with the intent to distribute marihuana. They argue that the district
court erred in calculating their base offense levels because the court considered
the methamphetamine found in one of the five backpacks seized by Border Pa-
trol agents. They contend that they had no knowledge of the methamphetamine
and no intent to possess it, so they cannot be held responsible for it.
A defendant’s knowledge of the type of drug he is carrying is not necessary
for the drug to be used in the calculation of his sentence. United States v. Valen-
cia-Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999); United States v. Gamez-Gon-
zalez, 319 F.3d 695, 700 (5th Cir. 2003). It is undisputed that defendants were
found with three other persons, all of whom were responsible for the five back-
packs containing marihuana and methamphetamine. Therefore, consideration
of the methamphetamine in calculating the base offense levels was not clearly
erroneous. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
Accordingly, the judgments are AFFIRMED.
2