United States v. Conchas , 278 F. App'x 383 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2008
No. 06-20990
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERTO DANIEL CONCHAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-326-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Daniel Conchas appeals the 262-month sentence imposed
following his plea of guilty to one count of conspiracy to possess more than five
kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841,
846. Finding no error, we affirm.
Conchas first challenges the district court’s determination of the amount
of cocaine attributable to him, specifically challenging the estimate by co-
defendant Jose DeJesus Rodriguez that he supplied Conchas with 20 kilograms
*
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should not be published and is not precedent except under the limited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. 06-20990
of cocaine. Conchas also contends that the district court’s reliance on
Rodriguez’s estimate violates the Sixth Amendment rule of United States v.
Booker, 543 U.S. 220 (2005), because it was not based on facts admitted by
Conchas or found by a jury beyond a reasonable doubt.
Booker eliminated any Sixth Amendment error caused by judicial
factfinding with respect to sentencing determinations by rendering the
Sentencing Guidelines advisory rather than mandatory. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). Thus, district courts continue to find
all facts relevant to sentencing by a preponderance of the evidence. See Mares,
402 F.3d at 519. Conchas’s constitutional challenge is without merit. See United
States v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert. denied, 547 U.S. 1199
(2006).
To the extent that Conchas contends that the evidence was not sufficiently
reliable to support the drug quantity calculation, given the general reliability of
the presentence report and the lack of any rebuttal evidence, we find no clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Even if
there were error, it was harmless, given the district court’s statement that it
would have imposed the same sentence of 262 months in prison had it sustained
the objection to drug quantity.
We also reject Conchas’s challenge to the imposition of a four-level
enhancement under U.S.S.G. § 3B1.1. There was sufficient unrebutted evidence
in the PSR to show that Conchas had a significant role in the operation and
directed and coordinated the activities of others. Accordingly, the district court
did not commit clear error. See United States v. Villanueva, 408 F.3d 193, 204
(5th Cir. 2005).
For the reasons discussed with respect to drug quantity, Conchas’s
constitutional challenge to the leadership enhancement is without merit. Given
our conclusion regarding the § 3B1.1 enhancement, Conchas’s contention that
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No. 06-20990
he is entitled to a “safety valve” reduction pursuant to U.S.S.G. § 5C1.2
necessarily fails.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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