United States v. Longoria , 202 F. App'x 700 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2006
Charles R. Fulbruge III
No. 05-51143 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LONGORIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. 3:04-CR-1788-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Longoria was convicted by a jury of conspiracy to possess
with intent to distribute 50 kilograms or more of marihuana and
possession with intent to distribute 50 kilograms or more of mari-
huana, in violation of 21 U.S.C. §§ 841 and 846. He was sentenced
to 55 months of imprisonment on both counts to run concurrently,
three years of supervised release, and a fine of $1,500.
*
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opinion should not be published and is not precedent except under the limited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.
Longoria, proceeding pro se, argues that the district court
erred when it sentenced him under U.S.S.G. § 2D1.1. He contends
that he was found guilty of possessing 50 kilograms or more of
marihuana and that the court erroneously set his base offense level
at 24 and that his base offense level should have been 20. He
seeks resentencing under United States v. Booker, 543 U.S. 220(2005), because the jury found him guilty of having only 50 kilo-
grams or more.
Longoria’s challenge to the finding that his base offense
level was 24, and his challenge based on Booker, are raised for the
first time on appeal and so must be reviewed for plain error. See
United States v. Vargas-Garcia, 434 F.3d 345, 347 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1894 (2006). Longoria stipulated that the
marijuana seized was 91.59 kilograms. The district court did not
plainly err in determining that the base offense level is 24, based
on 91.59 kilograms. See § 2D1.1(c)(8) (level 24 for 80 to 100
kilograms of marihuana).
Longoria was sentenced after Booker was decided and under the
advisory sentencing regime. In the wake of Booker, in determining
the guideline range, a court determines all facts relevant to sen-
tencing in the same manner as before Booker. United States v.
Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct.
2884 (2006). The district court was not limited to a drug quantity
determined by the jury, as Longoria suggests. Based on Longoria’s
stipulation of 91.59 kilograms, the court did not plainly err in
basing his sentence on that amount.
Longoria argues that the court erred in sentencing him to a
greater and a lesser included offense. He reasons that his con-
victions under §§ 846 and 841 violate double jeopardy. Because he
did not raise this issue in the district court, we review for plain
error. See United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.),
cert. denied, 126 S. Ct. 238 (2005).
A substantive crime and a conspiracy to commit that crime are
not the same offense for double jeopardy purposes. United States
v. Pena-Rodriguez, 110 F.3d 1120, 1131 n.11 (5th Cir. 1997) (citing
United States v. Felix, 503 U.S. 378, 389 (1992)). Longoria’s ar-
gument that being charged with, convicted of, and punished for the
conspiracy and substantive counts subjected him to double jeopardy
does not establish plain error.
Longoria contends that the district court erred in denying him
a minimal or minor role adjustment pursuant to § 3B1.2(a) or (b).
He urges that he was only a “mule” or courier of a small amount of
marihuana. The record indicates, however, that he played an inte-
gral role in driving a tractor-trailer transporting 91.59 kilograms
of marihuana hidden in the sleeper compartment of his tractor.
Longoria had transported three previous loads. The district court
did not clearly err in finding that he is not entitled to a down-
ward adjustment for a mitigating role in the offense. See United
States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
AFFIRMED.