United States v. Misael Santana-Rivera

Case: 10-11115 Document: 00511529464 Page: 1 Date Filed: 07/05/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 5, 2011
No. 10-11115
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MISAEL SANTANA-RIVERA,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CR-319-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Misael Santana-Rivera appeals the sentence imposed following his guilty-
plea conviction for conspiracy to possess with intent to distribute more than 500
grams of cocaine. See 21 U.S.C. §§ 841(a), (b) and 846. He argues that the
district court clearly erred in calculating his base offense under U.S.S.G. § 2D1.1
because the record was devoid of any reliable proof of drug quantity. In addition,
he states that there was no reliable evidence that proved the quantities of drugs
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-11115
assessed in the presentence report (PSR) fell within the time limits of his
involvement in the drug conspiracy.
The district court’s determination of the quantity of drugs attributable to
a defendant for purposes of § 2D1.1 is a factual finding that we review for clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A PSR
generally bears sufficient indicia of reliability to be considered at sentencing,
and the defendant bears the burden of demonstrating by competent rebuttal
evidence that the information in the PSR relied upon by the district court is
materially untrue. United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
Santana-Rivera argues that the district court clearly erred in finding that
the handwritten notes seized by law enforcement officers in the apartment
where he was arrested were drug ledgers and in using the notations made
therein in its calculation of drug quantity for purposes of § 2D1.1. In United
States v. Mergerson, 4 F.3d 337, 347 (5th Cir. 1993), we determined that the
district court erred in calculating the drug quantity for purposes of sentencing
because a purported drug ledger was the only evidence offered by the
Government to support its assertion that the drug quantity involved in the
conspiracy was over a kilogram of heroin. In United States v. Narviz-Guerra,
148 F.3d 530, 537 (5th Cir. 1998), we concluded that the PSR was unreliable
because the evidentiary bases for the probation officer’s drug quantity
calculation were not attached to the PSR, and there was no indication of how the
PSR was corroborated.
By contrast, in this case, the district court’s finding that the notes in
question were drug ledgers was corroborated at sentencing by the testimony of
an agent from the Drug Enforcement Administration. The agent’s testimony
that the notes were drug ledgers bear a sufficient indicia of reliability for
sentencing purposes. Also, that testimony was corroborated by Santana-Rivera’s
admission that he possessed the cocaine found in the apartment, evidence of
drug paraphernalia and money counting found in the apartment, and evidence
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No. 10-11115
that Santana-Rivera had telephone contact with others in the drug conspiracy.
See United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010), cert. denied, 79
U.S.L.W. 3673 (U.S., May 31, 2011) (No. 10-10242); United States v. Guerrero,
129 F.3d 611, 1997 WL 681229, at **8-10 (5th Cir. 1997); United States v.
Thomas, 12 F.3d 1350, 1372 (5th Cir. 1994). Additionally, Santana-Rivera’s
testimony that the notes were really evidence of a motor vehicle sale is absurd
in light of the document itself. His testimony failed to explain the numerous
notations and relate them to a vehicle sale transaction. Accordingly, there was
evidence with sufficient indicia of reliability before the district court to support
its finding that the notes in question were drug ledgers. The district court’s
conclusion that Santana-Rivera was lying is plausible in light of the record.
Santana-River correctly asserts that, while the PSR determined that he
should be held responsible for amounts of cocaine and methamphetamine
distributed by the conspiracy, the drug ledgers did not explicitly make a
reference to either drug. The probation officer recognized this ambiguity in the
notes, however, and therefore, in an “abundance of caution,” interpreted the drug
proceeds referenced in the notes as being derived from sales of cocaine instead
of methamphetamine because “it would be more beneficial to the defendant.”
Because it was not clear error to find that the notes were drug ledgers and
because there was evidence introduced at the sentencing hearing that Santana-
Rivera was involved with methamphetamine and cocaine, any error in
construing the drug ledgers as referencing cocaine, which resulted in a lower
base offense level than if the ledgers were construed as referencing
methamphetamine, was in Santana-Rivera’s favor and, therefore, harmless. See
§ 2D1.1, comment. (n.10(E)) (Drug Equivalency Tables).
Santana-Rivera did not argue before the district court that certain drugs
could not be attributed to him because they were outside the time frame of the
charged conspiracy. Accordingly, that argument is reviewed for plain error.
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). There is no plain
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error. See United States v. McCaskey, 9 F.3d 368, 375 (5th Cir. 1993). The
judgment of the district court is AFFIRMED.
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