                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2003

USA v. Durrder
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3676




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Recommended Citation
"USA v. Durrder" (2003). 2003 Decisions. Paper 190.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/190


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                                       NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       NO. 02-3676


             UNITED STATES OF AMERICA

                            v.

                  CARLOS DURRDER,
                   a/k/a Pedro Jiminez,
                         Appellant




      On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
          (D.C. Crim. Action No. 99-cr-00364-8)
      District Judge: Honorable William H. Yohn, Jr.


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    October 17, 2003


BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges


             (Opinion Filed: October 23, 2003)




               OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Appellant Pedro Jiminez, a/k/a Carlos Durrder, was convicted by a jury of

conspiring to distribute heroin and several other drug offenses. He was sentenced to 169

months of imprisonment. On appeal, we remanded to the District Court for a

resentencing hearing at which factual findings would be made regarding the amount of

drugs that were to be attributed to the defendant. On remand, the District Court made the

required findings and resentenced Jiminez to 169 months.

              On this second appeal, Jiminez insists that prejudicial hearsay was admitted

at his trial. He made no such claim in his first appeal, and it is accordingly waived.

Claims of error that could and should have been raised on appeal are not preserved for

review in a subsequent appeal. United States v. Pultrone, 241 F.3d 306, 307-08 (3d Cir.

2001).

              Jiminez’s only other challenge to the judgment on review is a claim that the

District Court erred in concluding that he was responsible for distributing approximately

4000 grams of heroin. Our review of the record convinces us that there was ample

reliable evidence in the trial record to support this conclusion.

              United States Sentencing Guidelines § 2D1,1 directs district courts to

estimate quantities of unseized drugs. That section provides that “where there is no drug

seizure or the amount seized does not reflect the scale of the offense, the Court shall

approximate the quantity of the controlled substance. In making this determination, the


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court may consider, for example, similar transactions in controlled substances by the

defendant.” U.S.S.G. § 2D1,1 app. note 12 (1998).

              Duran-Mariano and Peralta-Victorio were active participants in the drug

conspiracy who testified at length about how often Jiminez had supplied them with heroin

for resale and in what quantities. The District Court analyzed their testimony and

reasonably and conservatively extrapolated to estimate Jiminez’s distributions throughout

the life of the conspiracy.

              The Sentencing Guidelines do not demand certainty and precision. They

demand that the Court do the best it can with the evidence in the record, erring on the side

of caution. See United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). The District

Court followed the letter and spirit of the law, and we can find no fault with its resulting

estimate.

              The judgment of the District Court will be affirmed.

TO THE CLERK:

              Please file the foregoing Not Precedential Opinion.




                                              /S/ Walter K. Stapleton
                                              ____________________________
                                                    Circuit Judge




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