United States v. Ricardo Ortiz , 583 F. App'x 312 ( 2014 )

Case: 13-40882 Document: 00512805545 Page: 1 Date Filed: 10/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40882
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 16, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RICARDO ORTIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-191-12
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Ricardo Ortiz appeals the sentence imposed following his guilty plea
conviction of conspiracy to possess, with intent to distribute, more than 1,000
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.
The district court imposed a guidelines-range sentence of 210 months of
imprisonment and five years of supervised release. Ortiz argues, as he did
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-40882 Document: 00512805545 Page: 2 Date Filed: 10/16/2014
No. 13-40882
below, that the district court improperly assessed the two-level enhancement
of U.S.S.G. § 2D1.1(b)(12) (2012).
This court reviews the district court’s findings of fact with respect to
sentencing under the clear error standard. United States v. Betancourt, 422
F.3d 240, 244-45 (5th Cir. 2005). A factual finding is not clearly erroneous if it
is plausible in light of the record read as a whole. Id. at 245. The two-level
enhancement of § 2D1.1(b)(12) is appropriate if the defendant maintained a
premises for the purpose of manufacturing or distributing a controlled
substance, including storage of a controlled substance for the purpose of
distribution. See § 2D1.1(b)(12). Although Ortiz objected to the PSR’s
application of the Guidelines, he did not present testimony to rebut the facts
set forth therein. Where the defendant offers no evidence to rebut the
information in the PSR, the district court is free to adopt its findings. See
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
The record, including stipulated facts, unrefuted facts in the PSR, and
testimony by an investigating case agent at the sentencing hearing, establishes
that Ortiz performed a variety of roles in the Nunez drug trafficking
organization, including the coordination of transportation and delivery of
marijuana from stash houses in Texas to stash houses in Florida. Ortiz and
another member of the drug trafficking organization provided the funds to
purchase “the FM 2812 stash house,” in Edcouch, Texas, and then distanced
themselves from the purchase by placing the house under the name of another
participant in the drug trafficking organization. The record further indicates
that the FM 2812 stash house was used by the drug trafficking organization
for the sole purpose of distributing marijuana, it was used to facilitate loads of
marijuana for which Ortiz was responsible, and he participated in activities at
the stash house involving drug trafficking and renovation.
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Case: 13-40882 Document: 00512805545 Page: 3 Date Filed: 10/16/2014
No. 13-40882
Thus, the district court’s determination that Ortiz maintained a
premises for the purpose of distributing a controlled substance is plausible in
light of the record, see Betancourt, 422 F.3d at 244-45, and the application of
the § 2D1.1(b)(12) enhancement was therefore proper.
AFFIRMED.
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