                          UNITED STATES COURT OF APPEALS
                                   For the Fifth Circuit
                       __________________________________________

                                      No. 99-20291
                       _________________________________________

                               UNITED STATES OF AMERICA,
                                       Plaintiff-Appellee,


                                                v.


       NARCISO MONTANO-MINOTTA, A/K/A BIGOTE, A/K/A NARCISO MINOTTA
     MONTANO, A/KA/ NARCISCO MONTANO-MINOTTA, A/K/A NARCISCO MINOTTA
                              MONTANO,
                               Defendant-Appellant.

                       __________________________________________

                          Appeal from the United States District Court
                               for the Southern District of Texas
                                        (H-98-CR-399-1)
                       __________________________________________

                             December 21, 2000
Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:1

        Narciso Montano-Minotta (“Minotta”) appeals his sentence on the grounds that the

federal district court applied an improper burden of proof during his sentencing and the federal

district court’s findings of fact were not supported by the evidence. For the reasons stated below,

we affirm.

1.      Factual and Procedural Background



        1
        Pursuant to 5th Cir. R. 47.5, this Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
       In August of 1998, federal agents (“Agents”) initiated surveillance on Minotta and the

locales that he frequented including an apartment located at 15100 Ella Blvd., apt. 1408 (“Ella

apartment”). The Agents suspected that the Ella apartment was a “stash” house for drugs and

that Aldemar Anguilo Gonzalez (“Gonzalez”) guarded its contents.

       On August 30, 1998, Minotta left the Ella apartment, shut the garage door behind him,

and drove to a pharmacy on the corner of Kuykendahl and Ella Blvd. Minotta entered the store,

and exited with a package of baby diapers. He then drove to an apartment located at 5959 West

and FM 1960 (“1960 apartment”). Thirty minutes later, Minotta left the 1960 apartment and

drove to an apartment located in the Nantucket Square Apartments (“Nantucket apartment”).

Minotta stayed there for ninety minutes and then drove back to the 1960 apartment.

       Based on their surveillance, the Agents approached the occupant of the Nantucket

apartment, Jose Santiago Minotta-Gonzalez (“Santiago”) and asked him if they could search the

apartment. Santiago agreed. The Agents found more than $393,000 in cash stored in various

locations, a loaded .357 revolver which had been stolen from a warehouse in Houston, the

package of baby diapers which Minotta had purchased,2 and a document which had Minotta’s

pager number. The Agents took Santiago into custody.

       Following the search of the Nantucket apartment and based on the evidence found there,

the Agents decided to search the Ella apartment. The Agents went to the Ella apartment and

asked Gonzalez for permission to search it. Gonzalez agreed. Entry into the apartment could

only be made via the garage because the front door was barricaded with a 2x4 piece of wood.



       2
         The only clothing that was found belonged to an adult male. There was no furniture or
crib that would be associated with a baby.

                                                2
Once inside, the Agents found a loaded .357 revolver, 120 kilograms of cocaine, ledgers which

revealed that 60 kilograms of cocaine had already been sold, photographs of Minotta and

Gonzalez, and two boxes that were addressed and ready for shipment to Colombia which

contained clothing, perfume, compact disks and $10,000 cash. Minotta’s fingerprints were on

wrappings inside the box that contained the $10,000 cash. The Agents took Gonzalez into

custody.

       Based on the evidence seized at the apartments, the Agents stopped Minotta while he was

driving. The Agents arrested him, and searched his vehicle. They found a .357 revolver which

had been stolen from the same warehouse at the same time as the revolver found in the Nantucket

apartment, a garage door opener for the Nantucket apartment, and a bag that contained a money

wrapper bearing a $250 denomination and small rubber bands. The money wrapper and the

rubber bands were the same as those found on the cash at the Ella and Nantucket apartments.

       On September 23, 1998, Minotta was indicted for being an alien unlawfully in the United

States in possession of a firearm in violation of 18 U.S.C § 922 (g) (5). Minotta decided to plead

guilty even though he did not have a plea agreement with the government. On November 30,

1998, before pleading guilty, the federal district court admonished Minotta that he could face 18

U.S.C § 922 (g) (5)’s statutory maximum punishment–120 months. Thereafter, Minotta pled

guilty to being an alien unlawfully in the United States in possession of a firearm in violation of 18

U.S.C § 922 (g) (5). The federal district court ordered a presentence investigation report

(“PSR”).

       In the PSR, the probation officer applied United States Sentencing Guideline (“U.S.S.G.”)

§ 2K2.1. U.S.S.G § 2K2.1 (c) (1) (A) is a cross reference that instructs a court to apply U.S.S.G.


                                                  3
§ 2X1.1, if the defendant possessed any firearm in connection with the commission of another

offense and the resulting offense level is greater than the offense level determined under U.S.S.G.

§ 2K2.1 without the cross reference. The federal district court found, by a preponderance of the

evidence, that Minotta was involved in a conspiracy to possess with the intent to distribute 180

kilograms of cocaine and that the revolver which made the basis of the 18 U.S.C. § 922 (g) (5)

conviction was connected to the drug conspiracy. The federal district court determined that the

offense level under the cross reference, was greater than the offense level under U.S.S.G. § 2K2.1

without the cross reference, and thus, calculated Minotta’s offense level under the cross reference.

       U.S.S.G. § 2X1.1 instructs a court to apply the guideline section for the substantive

offense. The substantive offense is possession with the intent to distribute 180 kilograms of

cocaine. Therefore, U.S.S.G. § 2D1.1 is the applicable guideline section. Under U.S.S.G. §

2D1.1, the court determined that Minotta’s base offense level was 38. The federal district court

pursuant to U.S.S.G. § 2D1.1 (b) (1) increased Minotta’s offense level by 2 because Minotta

possessed a firearm in connection with the drug conspiracy. Finally, the federal district court

reduced Minotta’s offense level by 3 pursuant to U.S.S.G. § 3E1.1 for acceptance of

responsibility. His total offense level was 37. The court found that Minotta’s criminal history

category was I. Pursuant to the guidelines, the range was 210 to 262 months for an offense level

37 and a criminal history I. The federal district court, however, chose to sentence Minotta to 120

months imprisonment, the statutory maximum.

2.     Discussion

       The appellant, Minotta, argues that the federal district court improperly applied the

preponderance of the evidence burden of proof rather than a heightened standard to establish the


                                                 4
facts used in determining his sentence. Minotta, further, argues that regardless of the burden of

proof, the federal district court’s findings of fact were clearly erroneous because they were not

supported by the evidence. We disagree. The federal district court did not err when it applied the

preponderance of the evidence burden of proof to establish the facts used to determine Minotta’s

sentence nor were its factual findings clearly erroneous.

        2.1     The Federal District Court applied the appropriate burden of proof

        The issue before us is what is the appropriate burden of proof that should be applied to

establish facts used in sentencing when there is a cross reference under the guidelines. We review

de novo whether a federal district court applied the appropriate burden of proof to establish facts

used in sentencing. See U.S. v. Hull, 160 F.3d 265, 268 (5th Cir. 1998) (“matters of

interpretation of the sentencing guidelines are reviewed de novo”).

        Minotta acknowledges that the preponderance of the evidence standard is firmly

established in this Circuit as the generally appropriate burden of proof in sentencing proceedings.

He argues, however, that his case is the rare instance where a heightened burden of proof should

be applied. Minotta contends that the heightened burden should apply because his sentence was

increased from a range of 10-16 months to 120 months because of a cross reference.

        In rare circumstances, a heightened standard may be appropriate when “a particular fact

relevant to sentencing dramatically alters the sentencing options of a court to the disadvantage of

the defendant.” See U.S. v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998) (emphasis added). We

are, however, “quite reluctant to part from the preponderance of the evidence standard in a non-

capital case[.]” See id. at 995.

        Minotta’s case is not the rare circumstance. By our calculations Minotta sentence was not


                                                 5
increased from a range of 10-16 months to 120 months because of a cross reference. Rather, it

was increased from a range of 21-27 months to 120 months.3 This increase is consistent with

other cases in our Circuit that have applied the preponderance of the evidence burden of proof

during sentencing. See U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994) (an increase from 6 years

to 20 years); U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993) (an increase from 30 years to life).

Moreover, Minotta’s sentence was within the statutory range, albeit the statutory maximum.

Whether a heightened burden of proof would be required in light of Apprendi v. New Jersey, ___

U.S. ___, 120 S.Ct. 2348, 147 L. Ed. Ed 435 (2000) if his sentence had been above the statutory

maximum, is a question we leave unanswered.

       2.2      Federal District Court’s factual findings were not clearly erroneous

       Minotta challenges the trial court’s factual findings used during sentencing. Minotta

contends that there was insufficient evidence that he was involved in a drug conspiracy and that

the revolver that made the basis of the 18 U.S.C. § 922 (g) (5) conviction was not connected to

the drug conspiracy. We review a federal district court’s factual finding for sentencing purposes

for clear error. See Millsaps, 157 F.3d at 995.

           At the Nantucket apartment, the Agents found more than $393,000 cash, a revolver



       3
         Minotta was convicted of violating 18 U.S.C. § 922 (g) (5). Per Appendix A–Statutory
Index, the appropriate guideline for violating 18 U.S.C. § 922 (g) (5) is 2K2.1. Exclusive of the
cross reference in U.S.S.G. § 2K2.1, Minotta scores a level 16. Minotta has a initial level of 12
per U.S.S.G. § 2K2.1 (a) (7). The initial level is increased by 2 per U.S.S.G. § 2K2.1 (b) (4)
because a stolen firearm was involved. Another 4 levels is added per U.S.S.G. § 2.K2.1 (b) (5)
because Minotta possessed a firearm in connection with another felony offense, the drug
conspiracy. 2 levels are then subtracted pursuant to U.S.S.G. § 3E1.1 (a) for acceptance of
responsibility. Therefore, without the cross reference Minotta’s total offense level would be 16.
Considering his criminal history category, I, and an offense level of 16, Minotta’s sentencing
range would be 21-27 months.

                                                  6
which had been stolen from the same location at the same time as the revolver Minotta was

convicted of possessing, and the package of baby diapers which Minotta had bought. At the Ella

apartment, the Agents found 120 kilograms of cocaine, drug ledgers, photographs of Minotta and

Gonzales, and a box addressed and ready for shipment to Columbia with $10,000 cash and

Minotta’s fingerprints on the wrappings inside. When the Agents stopped Minotta, they found a

revolver which had been stolen from the same location at the same time as the revolver found in

the Nantucket apartment, a garage door opener to the Nantucket apartment, a bag which

contained a money wrapper and rubber bands that were the same as those found on the cash at the

Ella and Nantucket apartments. Based on this evidence, the trial court’s finding, by a

preponderance of the evidence, that Minotta was involved in a drug conspiracy and that the

revolver which made the basis of the 18 U.S.C. § 922 (g) (5) conviction was connected to the

drug conspiracy was not clearly erroneous.

3.     Conclusion

       Based on the foregoing, we AFFIRM the federal district court’s decisions in all respects

regarding Minotta’s sentence.




                                                7
