United States v. Arriyaga-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-40970
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO ARRIYAGA-PEREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1925-1
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Rolando Arriyaga-Perez appeals his conviction and
sentence for possession with the intent to distribute in excess of
one hundred kilograms of marijuana, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). Arriyaga-Perez first argues that the
district court erred when it held him responsible, as “relevant
conduct,” for marijuana transported by other individuals.
A district court’s determination of a defendant’s
relevant conduct for sentencing purposes is reviewed for clear
*
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opinion should not be published and is not precedent except under the limited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.
error. United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001);
see also United States v. Villanueva, F.3d , 2005 WL 958221,
*9 n.9 (5th Cir. 2005). The base offense level for a defendant
convicted of a drug offense is determined by the amount of drugs
involved, including the amount that can be attributed to him as
relevant conduct. U.S.S.G. §§ 1B1.3(a)(1), 2D1.1(a)(3). Relevant
conduct includes “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1).
Arriyaga-Perez was recruited along with sixteen other
recruitees and taken to warehouses in Mexico where he and the
others picked up marijuana to import into the United States. After
picking up the marijuana, Arriyaga-Perez and the others were
transported together to the Rio Grande River. Together, they
smuggled the marijuana across the river. Based on the record in
this case, the district court’s decision that the facts were more
appropriately viewed as showing jointly undertaken criminal
activity was not clearly erroneous. See United States v.
Hernandez-Coronado, 39 F.3d 573-74 (5th Cir. 1994).
Second, Arriyaga-Perez argues that the district court
erred when it denied his request for a two-level reduction to his
offense level based on his minor role. This court reviews for
clear error a district court’s findings on whether a defendant is
entitled to a mitigating role reduction. United States v.
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Virgen-Moreno, 265 F.3d 276, 296 (5th Cir. 2001); Villanueva, 2005
WL 958221, *9 n.9.
To qualify as a minor participant, a defendant “must have
been peripheral to the advancement of the illicit activity.”
United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001). “A
downward adjustment is appropriate only where a defendant was
substantially less culpable than the average participant.” United
States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999)
(internal quotation marks omitted). The defendant has the burden
of proving that his role in the offense was minimal or minor.
United States v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995).
Arriyaga-Perez is equally culpable as the sixteen other
men who were recruited to bring bundles of marijuana into the
United States. Furthermore, Arriyaga-Perez’s conduct was not
peripheral to the offense; his involvement began at the warehouses
and continued until he was found with a large quantity of marijuana
in the United States. He also expected to be paid for his partici-
pation in the offense. Accordingly, the district court’s determi-
nation that Arriyaga-Perez was not a minor participant was not
clearly erroneous. See United States v. Valencia-Gonzales, 172
F.3d 344, 346-47 (5th Cir. 1999).
Third, Arriyaga-Perez argues that, under United States v.
Booker, 125 S. Ct. 738 (2005), his Sixth Amendment rights were
violated when the district court sentenced him based on 509
kilograms of marijuana when he admitted only to “in excess of 100
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kilograms” of marijuana. Because Arriyaga-Perez did not raise this
issue in the district court, we review this claim for plain error.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed, (Mar. 31, 2005) (No. 04-9517) .
Under the plain-error standard applied in Mares, the
pertinent question is whether “the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.” Id. The record does
not contain anything to reflect what the district court would have
done had it sentenced him under an advisory scheme. Arriyaga-Perez
has not sustained his burden of showing that the court would have
reached a “significantly different result” under an advisory scheme
and has consequently failed to show plain error as to his Sixth
Amendment argument. See id.; United States v. Akpan, F.3d ,
2005 WL 852416, *13 (5th Cir. 2005).
Last, Arriyaga-Perez argues that the statute under which
he was convicted, 21 U.S.C. § 841(a) and (b) is unconstitutional on
its face, under Apprendi v. New Jersey, 530 U.S. 466 (2000). We
have specifically rejected the argument that Apprendi rendered 21
U.S.C. § 841’s sentencing provisions facially unconstitutional.
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); see
also United States v. Valenzuela-Quevedo, F.3d , 2005 WL
941353, *2 (5th Cir. 2005). We are bound by our prior precedent on
this issue. See United States v. Lee, 310 F.3d 787, 789 (5th Cir.
2002).
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The judgment of the district court is AFFIRMED.
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