United States v. Quinones , 71 F. App'x 319 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 1, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11249
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO QUINONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-239-25-A
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Ricardo Quinones appeals his sentence imposed after his guilty
plea conviction for conspiracy to possess with intent to distribute
more than 100 kilograms of marijuana, in violation of 21 U.S.C. §
841(a)(1) & (b)(1)(B) and § 846.
Quinones argues that the sentencing court erred when it used
cash that was found in his residence to approximate drug quantity
when it determined his sentence. During the investigation leading
1
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that this opinion should not be published and is not precedent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.
to Quinones’ arrest, more than $500,000 was seized from Quinones’
vehicle and his home. The district court’s determination that the
cash was proceeds of jointly undertaken criminal activity is
supported by Quinones’ plea agreement, in which he stipulated that
the money was proceeds of drug trafficking. Therefore, the
district court did not clearly err when it used the seized cash to
approximate drug quantity. See U.S.S.G. § 2D1.1, comment. (n.12);
United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997).
Quinones also challenges the district court’s application of
U.S.S.G. § 2D1.1(b)(1) by arguing that the fact that five firearms
were found in his master bedroom does not warrant the weapons
enhancement. He fails to argue that the weapons were not connected
with the offense. The record supports the district court’s
decision, since undisputed facts establish that five firearms were
found in Quinones’ residence along with proceeds of drug
trafficking, scales, and drugs. Therefore, the district court did
not commit clear error when it applied U.S.S.G. § 2D1.1. See
United States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).
Quinones also argues that the district court erroneously
determined that he committed perjury and therefore erred when it
increased his sentence pursuant to U.S.S.G. § 3C1.1, the
obstruction of justice guideline, and denied him an adjustment for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
Although the district court made repeated findings on these issues
during the sentencing hearing, Quinones failed to object and failed
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to present the arguments that he now presents to this court.
Therefore, these issues are reviewed for plain error only. See
United States v. Ocana, 204 F.3d 585, 588-89 (5th Cir. 2000).
Additionally, Quinones argues for the first time in his reply brief
that a perjury determination may only be made when the perjury is
corroborated by two witnesses. Arguments may not be raised for the
first time in a reply brief, and therefore this argument is not
considered. See United States v. Jackson, 50 F.3d 1335, 1340 n.7
(5th Cir. 1995).
Based on the considerable uncontested evidence contained in
the presentence report and elsewhere in the record regarding
Quinones’ active participation in the conspiracy, and giving the
deference due to the district court’s credibility findings, see
United States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996), the
determination that Quinones committed perjury during his sentencing
hearing when he disavowed knowledge of the cash and weapons that
were stashed in his home is not error, plain or otherwise.
Moreover, the district court’s finding that Quinones intentionally
provided false testimony on a material issue with the intent to
persuade the court to lower his sentence provided the requisite
elements of a perjury determination and therefore warranted
application of the obstruction of justice guideline. See United
States v. Cabral-Castillo, 35 F.3d 182, 186 (5th Cir. 1994) (the
district court’s finding is sufficient if it encompasses the
factual predicates for perjury).
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Quinones also contests the district court’s decision not to
apply U.S.S.G. § 3E1.1, which provides for an offense level
reduction if a defendant “clearly demonstrates a recognition and
affirmative acceptance of personal responsibility for his criminal
conduct.” Conduct resulting in an enhancement for obstructing
justice ordinarily indicates that a defendant has not accepted
responsibility for his criminal conduct, although both adjustments
may apply in “extraordinary” cases. U.S.S.G. § 3E1.1, comment.
(n.4). The district court’s conclusion that Quinones did not fully
accept responsibility for his crime because he lied about
possessing cash and weapons, when in fact he did possess cash and
weapons, is not error, plain or otherwise. See United States v.
Lugo-Abundis, 897 F.2d 171, 172 (5th Cir. 1990) (affirming refusal
to grant acceptance of responsibility adjustment when sentencing
defendant for marijuana offense when defendant denied knowledge of
the presence of drugs).
The district court’s judgment is therefore AFFIRMED.
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